Rep. Bishop Introduces Bill to Subsidize STEM Teachers

7/20. Rep. Tim Bishop (D-NY) introduced HR 2598 [LOC | WW], the "STEM Master Teacher Corps Act", a bill to establish and authorize appropriations for a Science, Technology, Engineering, and Math (STEM) Master Teacher Corps program. It was referred to the House Education and Workforce Committee.

This bill starts by reciting lofty goals, such as increasing the quality of STEM education in secondary schools -- particularly in schools located in high poverty areas -- and sending more students to college to study STEM fields. The bill authorizes appropriations for grants to pursue these goals.

However, the bill's stated dedication to STEM education is contradicted by its failure to include meaningful requirements for eligible STEM teachers. The bill makes special education and English language teachers eligible. The bill imposes no requirement that any funded teachers have a degree from a four year college with a major or minor in any STEM field.

This is the companion bill to S 758 [LOC | WW], the "STEM Master Teacher Corps Act of 2011", introduced on April 7, 2011, by Sen. Al Franken (D-MN), Sen. Joe Lieberman (D-CT), and Sen. Jeanne Shaheen (D-NH). See, story titled "Senators Introduce Bill to Provide Additional Compensation to STEM Teachers" in TLJ Daily E-Mail Alert No. 2,223, April 19, 2011.

House Commerce Subcommittee Approves SAFE Data Act

7/20. The House Commerce Committee's (HCC) Subcommittee on Subcommittee on Commerce, Manufacturing, and Trade (SCMT) amended and approved HR 2577 [LOC | WW | PDF], the "Secure and Fortify Electronic (SAFE) Data Act of 2011". See, HCC release.

This bill would create both a federal data security regime, and a federal data breach notification regime. A key element of both regimes is what "personal information" is subject to these regulatory regimes.

The bill gives the Federal Trade Commission (FTC) rulemaking authority, gives enforcement authority to the FTC and states, and provides for limited federal preemption of state laws.

The Subcommittee considered numerous amendments, and held roll call votes on many. Voting was partisan on all roll calls. The votes on all but two broke down along straight party lines, with Democrats backing amendments that would have increased the regulatory reach of the bill, particularly with respect to the definition of "personal information". The vote on final passage was conducted by voice. The full Committee has yet to mark up the bill. Subcommittee members suggested that there will be more changes to the bill at that time.

Both the HCC Republicans' web page, and the HCC Democrats' web page, for this mark up contains hyperlinks to amendments that were approved, rejected, or withdrawn.

For more on the bill as introduced, see stories titled "Rep. Mack Introduces SAFE Data Act" and "House Commerce Committee to Mark Up SAFE Data Act" in TLJ Daily E-Mail Alert No. 2,263, July 19, 2011.

Rep. Fred Upton (R-MI), the Chairman of the HCC, wrote in his opening statement that "H. R. 2577 is a measured response to an identified problem: data breaches of consumers’ personal information -- whether by accident or deliberate criminal activity -- can lead to identity theft, fraud, and other unlawful conduct. Consumers who have been victims of identity theft can recount the time and effort often required to stop the financial damage and re-establish their identity. It costs more than just the losses to the victim and the companies that lose billions of dollars every year: we all lose some freedom in order to protect ourselves from such criminal activity."

He added that this bill "will help mitigate the problem by requiring companies that collect and maintain our information to provide better protection of the data and notification to consumers in the event of a breach so they can protect themselves from risks that come when information is acquired by unauthorized people with criminal intentions."

Rep. Mary Mack (R-CA) (at right), the sponsor of the bill, and Chairman of the Subcommittee, presided at the mark up. Citing "massive breaches at Sony, Epsilon and Citigroup", she stated that "much more needs to be done to protect sensitive personal information". See, release.

Rep. Bobby Rush (D-IL) said that the Republicans are "saying one thing and doing another". Rep. Rush was the sponsor in the 111th Congress of HR 2221 [LOC | WW], the "Data Accountability and Trust Act", a bill similar to HR 2577. He added that the "majority is trying to ram this down the throats of the American people".

Rep. Henry Waxman (D-CA), the ranking Democrat on the HCC, said that "this bill is not very satisfactory to us".

Rep. John Dingell (D-MI), a former Chairman of the HCC, said that "we have got a bill that is not very good".

Democrats argued at the July 20 mark up for broadening the scope of the bill by revising the definition of "personal information", and bill giving the FTC authority to expand the definition under APA procedures.

The Subcommittee rejected by a vote a 9-10 an amendment that would have substituted the predecessor bill that the HCC and full House approved in the 111th Congress, HR 2221. All of the Republicans who voted, except Rep. Joe Barton (R-TX), voted no. All of the Democrats who voted voted yes.

The Subcommittee amended and approved HR 2221 on June 3, 2009. See, story titled "House Commerce Subcommittee Marks Up Data Accountability and Trust Act" in TLJ Daily E-Mail Alert No. 1,948, June 4, 2009. The HCC approved that bill on September 30, 2009. At the time, Rep. Rush was the Subcommittee Chairman, and Rep. Barton was the full Committee ranking Republican. The full House passed HR 2221 by voice vote on December 8, 2009. The Senate did not pass it.

The Subcommittee adopted an amendment offered by Rep. Marsha Blackburn (R-TN) and Rep. Pete Olson (R-TX) that imposes one limitation on FTC rulemaking authority. It provides, in effect, that in writing rules that change the definition of "personal information", the FTC must follow Magnuson Moss (MM) rulemaking procedure rather than Administrative Procedure Act (APA) procedure. See, related story in this issue titled "Magnuson Moss Versus APA Rulemakings".

The Subcommittee also adopted a minor technical amendment offered by Rep. Rush.

Data Security and Minimization. The Subcommittee also adopted an amendment offered by Rep. Cliff Stearns (R-FL) and Rep. Mike Pompeo (R-KS), that limits FTC rulemaking authority.

It provides as follows: "Insert at the end of section 2(b) the following new sentence: ``The Commission may not promulgate any regulations with regard to the establishment of such plan and procedures.´´"

Section 2 creates a federal data security regime. Subsection 2(b) sets data minimization requirements. It provides that any regulated entity "shall establish a plan and procedures for minimizing the amount of personal information maintained by such person. Such plan and procedures shall provide for the retention of such personal information only as reasonably needed for the business purposes of such person or as necessary to comply with any legal obligation."

Moreover, HR 2577 gives the FTC authority to write rules implementing sections 2 and 3. Hence, the Stearns Pompeo amendment altogether prevents the FTC from writing rules on the one topic of data minimization.

Preemption. Rep. Blackburn said at the July 20 mark up that there are two many carve outs in the preemption language of the bill, so that it lacks "teeth". However, she offered no amendment. She did say that these provisions need more work going forward.

Section 6 contains the preemption provision. It states that "This Act supersedes any provision of a statute, regulation, or rule of a State or political subdivision of a State, with respect to any entity subject to this Act, that contains -- (1) requirements for information security practices or treatment of data similar to those under section 2; or (2) requirements for notification of a breach of security similar to the notification required under section 3."

However, it then provides exceptions for "State consumer protection law", "State trespass, contract, or tort law", and "State laws to the extent that those laws relate to acts of fraud".

Private Right of Action. The bill creates no private right of action. It states, in Section 6, that "No person other than a person specified in section 4(c) may bring a civil action under the laws of any State if such action is premised in whole or in part upon the defendant violating any provision of this Act."

Section 4(c) provides for enforcement by state attorneys general. Nothing in the bill prevents state attorneys general from contracting out cases to tort lawyers operating under contingency fee contracts.

Definition of Personal Information in SAFE Data Act

7/20. The House Commerce Committee's (HCC) Subcommittee on Commerce, Manufacturing, and Trade amended and approved HR 2577 [LOC | WW | PDF], the "Secure and Fortify Electronic (SAFE) Data Act of 2011".

This bill would create both a federal data security regime, and a federal data breach notification regime. A key component of each regime is the definition of "personal information".

Section 5 of the bill contains definitions. Subsection (7) provides the definition of "personal information". It provides that personal information means "means an individual’s first name or initial and last name, or address, or phone number, in combination with any 1 or more of the following data elements for that individual: ... Social Security number ... Driver's license number, passport number, military identification number, or other similar number issued on a government document used to verify identity ... Financial account number, or credit or debit card number, and any required security code, access code, or password that is necessary to permit access to an individual's financial account."

This definition is the same as the definition in the related bill passed by the HCC and the full House in the 111th Congress, HR 2221 [LOC | WW], the "Data Accountability and Trust Act". Rep. Bobby Rush (D-IL) sponsored that bill. Rep. Henry Waxman (D-CA) was the full Committee Chairman at the time.

Nevertheless, Subcommittee Democrats argued long and vociferously for greatly expanding this definition. The Subcommittee rejected all of these amendments in partisan votes.

The Subcommittee rejected an amendment offered by Rep. Waxman that would have expanded the definition to include "personal electronic communications and personal photographs and video stored online, and other similar personal content".

Rep. Adam Kinzinger (D-IL) withdrew an amendment that would have expanded the definition to include "email address", "user name", and "source code that could be used to generate such access code or password".

The Subcommittee rejected an amendment offered by Rep. GK Butterfield (D-NC), the ranking Democrat on the Subcommittee, that would have expanded the definition to include "location of a child under the age of 13, and other information related to children under the age of that the Commission determines should be included in the definition of personal information".

The Subcommittee rejected an amendment offered by Rep. Jan Schakowsky (D-IL), that would have expanded the definition to include "records of an individual's purchases of over-the-counter drugs and devices, including pregnancy tests, and other health-related information that the Commission determines should be included in the definition of personal information".

The Subcommittee rejected an amendment offered by Rep. Waxman, that would have expanded the definition to include "records of online searches for health- or disease-related information by individuals, and other health-related information that the Commission determines should be included in the definition of personal information".

The Subcommittee rejected a amendment offered by Rep. Butterfield that would have expanded the definition to include "records of an individual’s purchases and rentals of books and videos, and other records of consumer purchases or rentals that the Commission determines should be included in the definition of personal information".

Magnuson Moss Versus APA Rulemakings

7/20. The House Commerce Committee's (HCC) Subcommittee on Commerce, Manufacturing, and Trade amended and approved HR 2577 [LOC | WW | PDF], the "Secure and Fortify Electronic (SAFE) Data Act of 2011".

It approved an amendment offered by Rep. Pete Olson (R-TX) and Rep. Marsha Blackburn (R-TN) that requires that if the Federal Trade Commission (FTC) amends the definition of "personal information", it must use Magnuson Moss (MM), rather than Administrative Procedure Act (APA), rulemaking procedure.

This amendment states as follows: "Page 28, beginning on line 20, strike ``promulgated under section 553 of title 5, United States Code´´."

This amends Section 5 of the bill, which contains definitions. Subsection (7) provides the definition of "personal information". Then, subsection (7) of the bill, as introduced, provides that the FTC "may, by rule promulgated under section 553 of title 5, United States Code, modify the definition of ``personal information´´ ... for the purpose of section 2 ... as a result of changes in technology or practices", or "for the purpose of section 3". Section 2 creates a data security regime. Section 3 creates a data breach notification regime.

That is, the Blackburn Olson amendment does not remove FTC authority to write rules that modify the definition of "personal information". It only removes authority to write such rules pursuant to 5 U.S.C. § 553. The FTC would still have authority to amend the definition with MM procedure.

Introduction to MM and APA Procedures. Section 553 is part of the Administrative Procedure Act (APA). It sets very minimal requirement for federal agencies in conducting rulemaking proceedings. It facilitates rulemakings that lack transparency and procedural fairness to affected parties, and allows the adoption of rules that lack evidentiary support or a rational policy basis.

It is the procedure that the Federal Communications Commission (FCC) follows in writing its rules. It is also the procedure that the FTC follows in most rulemakings. When the Congress passes a bill on a specific topic, such as children's privacy, it also gives the FTC authority to write rules, on the one narrow topic, with APA procedure.  Indeed, HR 2577 provides such exemptions for both section 2 and section 3 rulemaking.

However, on many other topics, if the FTC wishes to write rules, it must follow the procedure set forth in Section 18 of the FTC Act, which is codified at 15 U.S.C. § 57a. This process is often referred to as Magnusson Moss (MM), for the sponsors of an act passed in 1975 that imposed this procedure on the FTC. Section 18 of the FTC Act affords procedural fairness to affected parties. See, related story in this issue titled "What Magnuson Moss Requires of the FTC".

Hence, HR 2577, as amended by the Blackburn Olson amendment, allows the FTC to write implementing rules, both as to data security and data breach notification, under the APA process, with the one small exception of rules that modify the definition of "personal information", for which the FTC must follow MM.

As a practical matter, many FTC officials detest MM procedure, and often forego writing rules pursuant to MM, even though they could. Thus, if this bill were to be enacted into law, with the Blackburn Olson amendment, the FTC would be unlikely to write rules changing the definition of "personal information".

There was a major effort in the 111th Congress to remove many of the FTC's MM procedural requirements through a larger financial services regulation bill. The legislative language came from the HCC, but was in a House Financial Services Committee (HFSC) bill, passed by the House. Some Senators balked, and the MM modification language was not in the bill enacted by the Congress.

See, Section 4901 of HR 4173 [LOC | WW], the "Wall Street Reform and Consumer Protection Act of 2009", as passed by the House on December 11, 2009. The vote was 223-202. See, Roll Call No. 968. No Republicans voted for that bill. Ultimately, the Congress enacted the "Dodd-Frank Wall Street Reform and Consumer Protection Act", which does not contain the MM modification language of Section 4901.

For more on the APA, MM, and whether and when the FTC should be subjected to the MM process, see the Senate Commerce Committee's (SCC) hearing of March 17, 2010, and prepared testimony of Timothy Muris, prepared testimony of Thomas Rosch, prepared testimony of Dee Pridgen, and prepared testimony of Linda Woolley.

Such proposals may rise again. Also, while the Congress often gives the FTC APA rule making authority on a statute by statute basis, the Blackburn Olson amendment may suggest that proponents of a less regulatory federal system will seek to retain MM procedure for the FTC in other new statutes that grant specific powers to the FTC.

Subcommittee Members' Arguments. Rep. Olson stated in a release that "We need to move forward with comprehensive data security legislation, and the SAFE Data Act puts in place important protections for consumers. But we also need a balanced bill that protects consumers without putting unnecessary burdens on companies or hindering the important uses of data. The Blackburn-Olson amendment ensures that Congress -- not an unelected bureaucracy -- determines the definition of personal information. With this amendment, the proper protections will remain for the best balance between protecting consumers from identity theft and businesses ability to operate without excessive federal regulations."

Rep. Blackburn (at left) stated in this release that adoption of this amendment "is a defeat for over-regulation and a victory for job creators ... This correction, takes away the FTC's radical APA rulemaking authority, and provides much needed certainty for businesses that the FTC can't overreach in defining 'personal information'. Congress should not delegate such broad authority to an unaccountable and unelected body."

Rep. Olson said during the mark up session that the definition in the bill is "appropriate". He argued that with APA rulemaking authority, the FTC "is not going to be shy about opening up that definition", and that such a rule "could completely reform the scope of the bill". He added that enactment of this bill with this amendment "would create significant business uncertainty".

He said also that MM "is a much better system", and that the FTC should not be able to rewrite the definition "quickly and abruptly" and "without considering the economic consequences".

Rep. Blackburn said during the mark up that the Congress should "be more definitive", "put it in the statute" the important language, and not "kick the can over to the agencies".

Rep. Henry Waxman (D-CA), the ranking Democrat on the full Committee, spoke in opposition to the Blackburn Olson amendment. He argued that the "amendment before us would make sure that the FTC does not" amend the definition. He asserted that MM will "make it impossible for them to act".

Rep. GK Butterfield (D-NC), the ranking Democrat on the Subcommittee, said that the definition is unclear, that MM procedure is "incredibly hard to overcome", and that "the FTC needs discretion".

Rep. John Dingell (D-MI) said that "taking away the Administrative Procedure Act in this case is ridiculous". He said that under MM it takes ten years to complete a rulemaking proceeding.

Rep. Bobby Rush (D-IL) said that the amendment "will leave the commission unable to expand" the definition. He added that the FTC has "issued almost no rules under this process"

What Magnuson Moss Requires of the FTC

7/20. Magnuson Moss (MM) rulemaking procedure, codified at 15 U.S.C. § 57a, imposes several requirements upon the Federal Trade Commission (FTC) in conducting covered rule making proceedings. The following is list of some of the key requirements.

First, the FTC must "provide an opportunity for an informal hearing". The APA does not impose a hearing requirement. Also, when agencies that write rules under APA procedure, such as the Federal Communications Commission (FCC), conduct an event titled "hearing", it is more often an effort to increase public support for a particular set of rules, and rarely evidentiary exercise in which affected parties are guaranteed the opportunity to be heard..

Second, in a rulemaking proceeding in which the FTC has received "written data, views, and arguments", the FTC must "make all such submissions publicly available". This is a core transparency requirement.

Third, the FTC must "publish a notice of proposed rulemaking stating with particularity the text of the rule, including any alternatives, which the Commission proposes to promulgate". Agencies that write rules under APA procedure typically release a notice of proposed rule making in advance of the adoption of rules, but do not release the text of the new rules until prior to adopting them. Hence, interested parties often cannot effectively provide comment or evidence to the agency. Indeed, some agencies, such as the FCC, have not released rules until months after their adoption.

Also, the FTC is required to include "a statement as to the prevalence of the acts or practices treated by the rule". This makes it harder for the FTC to adopt rules on the basis of purely speculative harm, or because of the influence of interested companies or groups.

Also, the FTC is a required to include "a statement as to the manner and context in which such acts or practices are unfair or deceptive".

Commentary: Effect of Agency Rulemaking Procedure Upon Congressional Power

7/20. At the House Commerce Committee's (HCC) Subcommittee on Commerce, Manufacturing, and Trade's (SCMT) July 20, 2011, mark up of HR 2577 [LOC | WW | PDF], the "Secure and Fortify Electronic (SAFE) Data Act of 2011", some Republicans advanced the argument that by requiring the Federal Trade Commission (FTC) to proceed under Magnuson Moss (MM) rulemaking procedure, the Congress, and particularly the House Commerce Committee (HCC), would retain power, rather than transfer power to the FTC.

The Subcommittee adopted an amendment offered by Rep. Marsha Blackburn (R-TN) and Rep. Pete Olson (R-TX) that imposes one limitation on FTC rulemaking authority. It provides, in effect, that in writing rules that change the definition of "personal information", the FTC must follow MM rulemaking procedure rather than Administrative Procedure Act (APA) procedure. See, related stories in this issue titled "House Commerce Subcommittee Approves SAFE Data Act", "Definition of Personal Information in SAFE Data Act", "Magnuson Moss Versus APA Rulemakings", and "What Magnuson Moss Requires of the FTC".

Subcommittee Democrats spoke in opposition to the Blackburn Olson amendment, but did not address the issue of Congressional power.

There is an argument to be made that the Congress, and particularly the HCC, increases it power when it gives a regulatory agency broad discretion to write rules under the APA. Under this argument, the Congress limits its power by imposing MM procedure upon the FTC.

It is extraordinarily hard to pass a bill in the Congress, due to there being two bodies, a committee system, and procedural rules such as the Senate filibuster. It is not nearly so hard for an agency to write rules, even though those rules may look and operate the same as Congressional legislation.

The Congress has established regulatory agencies with rulemaking power in part to enable members of Congress to obtain desired laws that the Congress cannot itself enact because of its own cumbersome procedure. Rule writing agencies often act as agents of the Congress, and particularly their oversight committees.

Recall, for example, former Justice John Paul Stevens' statement in the Supreme Court's 2009 opinion in FCC v. Fox Television Stations that the FCC "is better viewed as an agent of Congress".

Hence, for example, if members of a particular oversight committee cannot manage to get a particular bill enacted by the Congress, they can seek to shift the legislative forum to the regulatory agency which they oversee. The agency then sometimes writes into rules what the legislators could not move through the Congress.

But, for the agents, and their principals in the Congress, to pursue such a strategy, the agencies must have only minimal constraints upon their rulemaking powers, such as those embodied in the APA (as well as the minimal constraints resulting from the Supreme Court's Chevron decision).

Thus, by giving the FTC or another agency APA rulemaking authority, the Congress also retains the potential to legislate indirectly, and more easily, by influencing the agency's rule making process. If the agency is constrained by procedure such as that contained in MM, this legislation by agency strategy is largely unavailable.

Classes of 1974 and 2010. The Magnuson Moss Warranty Act (Public Law 93-637), including its provisions regarding FTC procedure, was enacted in 1975. It was a product of the post Watergate Congress that was influenced by the huge freshman class of 1974 that included Rep. Waxman. It was packed with youthful reform minded Democrats.

The MM Act was then viewed as one of many reform bills enacted in the years following the Watergate scandal that would make government less powerful, more open, and fairer. Other reforms addressed campaign finance, freedom of information, open government meetings, and copyright.

As the members of the class of 1974 spent more time in Washington and in Congress, their enthusiasm for their youthful reforms faded.

The MM Act was passed by an overwhelmingly Democratic Congress. Now long serving Democrats oppose MM procedure. Rep. Waxman (elected in 1974), Rep. Dingell (elected in 1955), and Rep. Rush (elected in 1992) have between them over 110 years of service in Congress.

In contrast, Rep. Olson was elected in 2008, and Rep. Blackburn in 2002. They can expect support on limiting FTC rulemaking authority from the huge Republican class of 2010. One might predict, however, that over time the remaining members of the class of 2010 will also lose their enthusiasm for limiting government authority.

OMB Announces Consolidation of Federal Data Centers

7/20. Jeffrey Zients, Deputy Director for Management at the Office of Management and Budget (OMB), and Federal Chief Performance Officer, wrote a piece titled "Shutting Down Duplicative Data Centers". It announces a federal government plan to consolidate federal data centers.

Zients wrote that "in 2012, we will shut down 178 data centers, bringing us to a total of 373 data centers that will be shut down by the end of 2012. We are closing 195 data centers in this calendar year, of which 81 have already been shut down. This represents substantial progress towards our goal of shutting down more than 800 data centers by 2015".

He explained that "By shrinking our data center footprint we will save taxpayer dollars, cutting costs for infrastructure, real estate and energy. At the same time, moving to a more nimble 21st century model will strengthen our security and the ability to deliver services for less."

Sen. Tom Carper (D-DE) stated in a release that "The American people are weary of a Federal government that wastes scarce taxpayer dollars on assets it doesn't need. There's probably no better example than the $80 billion we spend each year on information technology. The Federal government has consistently thrown good money after bad and built an IT infrastructure that is bloated, inefficient, and actually makes it more difficult for the government to serve its citizens."

Sen. Carper (at right) added that "these first few rounds may be the 'low-hanging fruit' or perhaps the fruit already on the ground. That's why it's so important that we keep up this momentum and push forward on this initiative".

On Wednesday, July 27, Sen. Carper will host an event on Capitol Hill titled "Cloud Computing and Federal Data Center Consolidation Thought Leadership". The speakers will include Sen. Carper, Sen. Scott Brown (R-MA), Vivek Kundra (OMB Federal Chief Information Officer), and others from government and the private sector. See, notice.

See also, S 801 [LOC | WW], the "Information Technology Investment Management Act of 2011", introduced by Sen. Carper on April 12, 2011.

EPA Releases Proposals Regarding Used Electronics

7/20. The U.S. Environmental Protection Agency (EPA) released a document [34 pages in PDF] titled "National Strategy for Electronics Stewardship". See also, EPA release.

This document pertains to disposing of used electronics devices, including computers, cell phones, and music players. It contains numerous proposals for "voluntary partnerships" between government agencies and the electronics industry. It does not propose mandates, except for the used electronics of federal government entities.

Representatives of the EPA, General Services Administration (GSA), and electronics companies, including Dan Hesse of Sprint and Michael Dell of Dell, participated in an event in Austin, Texas, to announce and discuss this document.

Lisa Jackson, EPA Administrator, stated in the EPA release that "The participation of industry leaders like Dell, Sprint and Sony is absolutely essential to this effort, and will help ensure that the work of the federal government -- the largest electronics consumer around -- is protecting our people from pollution".

Nancy Sutley, Chairman of the White House Council on Environmental Quality (CEQ), stated in this release that "Through a strong federal partnership, and coordination with manufacturers, retailers, recyclers, State and local governments, and other stakeholders, the actions outlined here will help address the potential health and environmental problems caused by the mismanagement of discarded electronics".

Sen. Tom Carper (D-DE) stated in a release that this plan "leverages the purchasing power of the Federal government to support responsible purchasing, management and recycling of electronics within the Federal government". He wrote that it directs "Federal agencies to buy, use, reuse and recycle their electronics responsibly".

Sen. Carper is a member of the Senate Homeland Security and Government Affairs Committee (SHSGAC), and Chairman of its Subcommittee on Federal Financial Management.

The Consumer Electronics Association's (CEA) Walter Alcorn stated in a CEA release that "Electronics recycling is a national problem that deserves a national solution. Today's announcement from EPA, GSA and CEQ echoes the principles our industry laid out this spring with the eCycling Leadership Initiative".

House Judiciary Committee Delays Consideration of Data Retention Bill

7/20. The House Judiciary Committee (HJC) met to mark up numerous bills on July 20, 2011. It approved six bills. The seventh of seven items on the agenda was HR 1981 [LOC | WW], the "Protecting Children From Internet Pornographers Act of 2011", a bill to mandate data retention.

The HJC adjourned without considering this bill. Hypothetically, it could mark up this bill at another mark up next week.

The bill is packed with significant and controversial provisions. The bill would create a mandate that all "electronic communication service" (ECS) and "remote computing service" (RCS) providers retain for 18 months "network addresses the service assigns to each account". However, the bill would exempt wireless providers. The bill would create broad new immunities for service providers. The bill would create no limitations on the reasons for accessing retained data, and it would not limit who could obtain access.

For a summary of this bill, see, stories titled "House Crime Subcommittee Holds Hearing on Data Retention Bill", "Summary of HR 1981, Data Retention Bill", and "Summary of Existing Data Retention Mandates" in TLJ Daily E-Mail Alert No. 2,257, July 13, 2011.

Sen. Kohl and Sen. Lee Split on DOJ and FCC Reviews of AT&T Acquisition of T-Mobile

7/20. Sen. Herb Kohl (D-WI) and Sen. Mike Lee (R-UT), the Chairman and ranking Republican of the Senate Judiciary Committee's (SJC) Subcommittee on Antitrust, Competition Policy and Consumer Rights, announced opposite positions on whether the Department of Justice (DOJ) and the Federal Communications Commission (FCC) should block AT&T's acquisition of T-Mobile USA.

Sen. Kohl (at left) wrote in a letter to the DOJ and FCC that "I have concluded that this acquisition, if permitted to proceed, would likely cause substantial harm to competition and consumers, would be contrary to antitrust law and not in the public interest, and therefore should be blocked by your agencies."

In previous Congresses, Sen. Kohl and former Sen. Mike DeWine (R-OH), formerly the Chairman and ranking Republican on the Antitrust Subcommittee, often acted in unison and on a bipartisan basis on antitrust matters.

In contrast, Sen. Lee (at right) issued a release in which he stated that "the merger has the potential to provide significant network efficiencies".

Sen. Lee wrote that "The mobile phone market is a critical component of our nation's economy and the proposed merger between AT&T and T-Mobile deserves careful review. In my view, the merger has the potential to provide significant network efficiencies that may help alleviate capacity constraints, enable enhanced service quality, and facilitate expansion of a 4G LTE nationwide network, which would in turn create opportunities for handset innovation and continued development of data-rich applications."

He added that "I have confidence that the Department of Justice and Federal Communications Commission will take steps to ensure that the market remains competitive and that regional carriers continue to enjoy access to popular handsets and roaming arrangements on the nationwide networks."

Sen. Kohl wrote in his letter that this merger "would amount to a four-to-three merger among national cell phone providers", and if this merger is approved, "AT&T and Verizon will control nearly 80% of this market".

He continued that "T-Mobile has been a price leader in the cell phone market", and "Removal of such a maverick price competitor from such a highly concentrated market -- a competitor that disciplines price increases from all three other national cell phone competitors, not only AT&T -- raises a substantial likelihood that prices will rise following this merger. Such a result is unacceptable under antitrust law and as a matter of communications policy."

He also argued that the merger would "lessen the innovation that has been the keystone of this industry".

He also wrote "on the issue of national vs. local market, I believe this acquisition is properly analyzed on a national basis as a merger of two of the four national cell phone companies. The local competitors that AT&T cites are not full-fledged competitors to the four national carriers, as they are hamstrung by their need to pay their national competitors large sums in roaming and special access charges (and their ability to obtain data roaming for new technologies is seriously in question) and their inability to access many of the most in-demand smartphones." (Parentheses in originals.)

He also disputed AT&T's claims that the merger would result in efficiencies.

He also wrote that "There is considerable doubt as to whether Sprint could survive as an independent competitor should AT&T and Verizon capture a combined 80% market share after this acquisition." And, "a duopoly in this crucial marketplace would be a wholly unacceptable outcome."

Further, he wrote that "I find no feasible or practical merger conditions that could significantly remedy this harm."

Sen. Kohl's letter drew praise from groups that oppose the merger.

Ed Black, head of the Computer and Communications Industry Association (CCIA), stated in a release that "We could not agree more with Chairman Kohl’s articulate, well-documented assessment of the merger and its disastrous effects on competition and innovation. This merger would harm consumers, slow economic growth and stifle innovation in the burgeoning wireless marketplace."

He added that "As the most experienced antitrust legislator on Capitol Hill, we are not surprised that the Senator and his staff were able to see through AT&T’s massive lobbying and PR blitzkrieg and analyze the facts on the ground, not the spin. No matter how you dress it up, this merger is ugly."

Gigi Sohn, head of the Public Knowledge (PK), stated in a release that the PK agrees with Sen. Kohl "wholeheartedly". She wrote that "AT&T should not be allowed to buy T-Mobile".

Derek Turner of the Free Press stated in a release that "Senator Kohl's letter and recent statements from other leading members of Congress, including Reps. Markey, Eshoo, Conyers and Inslee, indicate that opposition to this unprecedented consolidation is growing. And it will only continue to grow as policymakers and the public learn how the facts contradict AT&T's pro-merger propaganda. The undeniable truth is that this merger would be a disaster for American consumers, competition and innovation."

Reps. Conyers, Eshoo & Markey Condemn AT&T's Acquisition of T-Mobile

7/20. Rep. John Conyers (D-MI), Rep. Anna Eshoo (D-CA) and Rep. Ed Markey (D-MA) sent a letter to the Department of Justice (DOJ) and the Federal Communications Commission (FCC) that criticizes AT&T's proposed acquisition of T-Mobile USA, but stops short asking that it be blocked.

They wrote that the merger "would be a troubling backward step in federal public policy -- a retrenchment from nearly two decades of promoting competition and open markets to acceptance of a duopoly in the wireless marketplace."

They continued that "Such industry consolidation could reduce competition and increase consumer costs at a time our country can least afford it. Further, it could also discourage investment and restrict innovation in both the wireless and wireline infrastructure market as well as in the associated applications and device markets."

Rep. Conyers, who represents a Detroit, Michigan district, is the ranking Democrat on the House Judiciary Committee (HJC). Rep. Eshoo (at left), who represents a Silicon Valley district, is the ranking Democrat on the House Commerce Committee's (HCC) Subcommittee on Communications and Technology (SCT). Rep. Markey, who represents a Boston, Massachusetts area district, is a senior member of the HCC.

See also, Rep. Markey's release.

Also, on July 15, Rep. Jay Inslee (D-WA), a member of the HCC, sent a separate letter to AT&T and T-Mobile USA in which he raised concerns about the merger, and propounded questions, to be answered by July 29, 2011.

Commentary: Due Process of Law in Antitrust Merger Reviews

7/20. The Congress has enacted statutes that give authority to the Department of Justice (DOJ) and Federal Trade Commission (FTC) to review and block mergers on antitrust grounds. The Congress has not enacted any comparable statute that gives the Federal Communications Commission (FCC) authority to conduct these antitrust merger reviews. Nevertheless, the FCC started doing so in the late 1990s, under the guise of conducting license transfer approval proceedings.

These proceedings are adjudications. And, as with adjudications in courts of law, the parties have due process rights. Among these are the right to an impartial judge or decision maker. If members of Congress are influencing the decision makers at the DOJ, FTC, or FCC, this might give rise to an argument that due process rights are violated.

Members of Congress have considerable leverage over the DOJ, FTC, or FCC. The relevant committees engage in constant oversight. The agencies are in need of amendments to statutes, and annual appropriations. The Congress's annual appropriations bill for the DOJ, for example, specifies the funding level for the Antitrust Division. And, it will not go unnoticed that Sen. Kohl is a senior member of the Senate Appropriations Committee (SAC), and the Subcommittee responsible for the DOJ's budget.

However, department and agencies, and the federal courts, apply a much lighter version of due process in agency adjudications than the courts do in litigation.

One of the reasons that the Congress establishes departments and agencies with adjudicatory powers is to dispense with the due process rights that have attached for centuries in judicial litigation. This enables members of Congress to interfere with agency decisions in adjudications in a manner that would plainly violate the due process right to an impartial decision maker in a case or controversy in a court constituted under Article III of the Constitution.

TLJ has asked attorneys in the DOJ's Antitrust Division about the function of the Congress in its antitrust merger reviews. However, said lawyers have declined to comment.

Pillsbury and Gulf Oil. Neglect of the due process right to an impartial decision maker in agency adjudications is not complete. The Courts, in exercising judicial review of agency decisions, have paid some slight attention to the right. In particular, in the old and solitary 1966 opinion of the U.S. Court of Appeals (5thCir) in Pillsbury Co. v. FTC, 534 F.2d 952, the Court overturned an agency decision due to interference from the Congress

Pillsbury was a judicial review of a final agency decision in which the Court of Appeals held that the due process rights of the Pillsbury Co. were violated.

However, it is unlikely that a violation of any Pillsbury rule would impact the AT&T T-Mobile proceedings.

First, regarding the FCC's proceeding, the FCC goes to great lengths to avoid issuing a final order, of which the parties would have standing to seek review. The FCC's strategy in its merger reviews is to reach an agreement with the parties. Basically, the FCC demands concessions from the parties. It waits until the parties relent, and ("voluntarily" in the words of the FCC) agree to the FCC's demands. If instead, the FCC were to issue an order, compelling the parties to do something, or blocking the merger, that would be a final order subject to judicial review. If the FCC were to issue a reviewable order, then the denial of due process under Pillsbury could be asserted as a grounds for reversal of the FCC. However, even if the FCC Commissioners did not want the merger to proceed, they could wait and let the DOJ take action to block it, and/or they could set the matter on for an agency hearing, in the distant future, which is still not yet a final order.

Second, regarding both the FCC and DOJ reviews, Pillsbury is simply an old case, decided 45 years ago by a distant Court of Appeals that rarely hears petitions for review or appeals of agency orders. Hypothetically, if there were judicial review of a final order of the FCC or DOJ in an AT&T T-Mobile proceeding, the U.S. Court of Appeals for the District of Columbia would most likely hear the case.

Third, the holding in Pillsbury is constrained by the 1977 opinion of the U.S. Court of Appeals (3rdCir) in Gulf Oil Corporation v. Federal Power Commission, 563 F.2d 588. In Gulf Oil the Court rejected an attempt to overturn a Federal Power Commission (FPC) order on the grounds that House Commerce Committee (HCC) members pressured the FPC.

The Court wrote in its opinion that "We agree, of course, with the principle underlying Pillsbury: The courts must not tolerate undue legislative interference with an administrative agency's adjudicative functions. We also are sensitive to the legislative importance of Congressional committees on oversight and investigation and recognize that their interest in the objective and efficient operation of regulatory agencies serves a legitimate and wholesome function with which we should not lightly interfere."

It also wrote that "bias induced by legislative interference as to questions of law, on the other hand, does not necessarily render invalid an agency's decision"

The opinion in Gulf Oil is also full of language limiting Pillsbury. It refers to "undue" interference and "incidental" intrusions. It states that for there to be a due process violation, the Congress must "seriously" influence, and there must be a showing that the agency decision "resulted from Congressional pressure upon the Commission".

It also states that an "identical resolution" in a similar proceeding refutes such a showing. The FCC and DOJ have been approving every wireless merger to come before them.

HCC Discussion of Pillsbury. The HCC's Subcommittee on Communications and Technology (SCT) held a hearing on May 13, 2011 titled "FCC Reform". Four Commissioners of the FCC appeared as witnesses. Rep. Ed Markey (D-MA) and Rep. Anna Eshoo (D-CA), opponents of the AT&T T-Mobile merger, used the occasion to, arguably, seek to influence the Commissioners.

Rep. Greg Walden (R-OR), the Chairman of the SCT, cautioned Rep. Markey about the "Pillsbury rule" and the "Pillsbury time frame".

He said, "I would remind members of the Committee that we have to be a little careful since there is a decision before them, when it comes to the Pillsbury rule and all."

Genachowski was asked about the meaning and effect of Pillsbury. He had no answer. Neither did FCC staff or HCC staff. Walden said, "they are going to their Blackberries", and then proceeded with the hearing.

Rep. Eshoo proceeded with her second five minute round of questions. She also stated, "God help us if Members of Congress can't come in as members of a committee and express an opinion." She added, "Whether Pillsbury or anything else gets in the way here, I am not a lawyer to make that determination."

At the conclusion of Rep. Eshoo's questions, Rep. Walden asked if the FCC staff had answers. Genachowski said "not yet".

A confused exchange followed. Rep. Markey stated, "I want to know if my Congressional prerogatives are in any way contradicted by any prerogatives of the FCC ... I don't want to end the hearing until that is established."

Rep. Walden said that "This is an issue before the Commission, and we have to to be cognizant of these rules". He added that "we will probably have a hearing on this issue".

Rep. Markey asked, "is the intention of the hearing which you are going to have, to in any way affect the decision of the FCC?"  Rep. Walden responded, "not if it violates the Pillsbury rule". He added that "I won't hold it until I find the answer to that question".

Rep. Markey said that Rep. Walden had made an "accusation that there is a potential Pillsbury violation". Rep. Walden said that "that was not my intent", and "if it was assumed that way, I take it back".

House Commerce Committee Approves Identity Theft Improvement Act

7/20. The House Judiciary Committee (HJC) approved HR 2552 [LOC | WW], the "Identity Theft Improvement Act of 2011", on a straight party line vote.

This bill responds to the 2009 opinion [18 pages in PDF] of the Supreme Court held in Flores-Figueroa v. U.S., 556 U.S. __. The bill will make it easier to obtain convictions in certain identity theft cases, including some involving computer intrusions. It will also make it easy to prosecute crimes involving the use immigration related fake identification.

Rep. Lamar Smith (R-TX), the Chairman of the HJC, wrote in his opening statement that "the Supreme Court held that the aggravated identity theft statute requires the government to prove that the defendant knew the means of identification belonged to another person. It is not sufficient that the government prove that the defendant knew that the identification was fake, or even that it was stolen."

Rep. Smith focused on the impact of this bill on identity theft in immigration cases.

For a detailed summary of this bill, see story titled "Rep. Goodlatte and Rep. Schiff Introduce Bill Regarding ID Theft and Computer Intrusion" in TLJ Daily E-Mail Alert No. 2,260, July 16, 2011.

This short bill would merely amend 18 U.S.C. § 1028 and 18 U.S.C. § 1028A by adding a new subsection (j) to section 1028 regarding "State of Mind Proof Requirement". It provides that "In a prosecution under subsection (a)(7) or under section 1028A(a), the Government need not prove that the defendant knew the means of identification was of another person."

Section 1028(a)(7) provides in part that "Whoever ... knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, or in connection with, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law ... shall be punished".

Section 1028A(a)(1) provides in part that "Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years". Subsection (c) enumerates numerous fraud related crimes, including computer fraud under 18 U.S.C. § 1030.

The HJC rejected an amendment offered by Rep. Bobby Scott (D-VA) by a vote of 10-16. See, roll call. All of the yes votes were cast by Democrats. All of the no votes were cast by Republicans.

His amendment would have provided that the amendment applies to Section 1028(a)(7), but not 1028A(a).

The vote on final passage was 16-10. See, roll call. Again, all Republicans voted together, for the bill, and all Democrats voted together, against the bill. Rep. Adam Schiff (D-CA), the co-sponsor of the bill is a Democrat, and a former member of the HJC. However, he gave up his seat on the HJC for a seat on the House Appropriations Committee (HAC) in 2007.

People and Appointments

7/20. Dane Snowdon will join the National Cable & Telecommunications Association (NCTA) as Chief of Staff, effective August 22, 2011. He is currently VP for External & State Affairs at the CTIA. He was Chief of the Federal Communications Commission's (FCC) Consumer and Government Affairs Bureau during the tenure of FCC Chairman Michael Powell, who is now head of the NCTA. See, NCTA release.

7/20. President Obama nominated Michael Fitzgerald to be a Judge of the U.S.. District Court for the Central District of California. See, White House news office release and release. He is a partner in the small Los Angeles law firm of Corbin Fitzgerald & Athey. The firm web site states that it handles white collar defense and business litigation. Federal Election Commission (FEC) records show that Fitzgerald has given money to the election campaigns of Barack Obama and other Democratic candidates.

7/20. Debra Berlyn was reappointed Chairman of the Federal Communications Commission's (FCC) Consumer Advisory Committee. See, FCC Public Notice for list of all members.

More News

7/20. The Federal Trade Commission (FTC) published a notice, notice, notice, and notice in the Federal Register that announce that the Open Mobile Alliance, DVD Copy Control Association, Network Centric Operations Industry Consortium, and Advanced Media Workflow Association have disclosed, pursuant to the National Cooperative Research and Production Act of 1993, changes to their membership. See, Federal Register, Vol. 76, No. 139, Wednesday, July 20, 2011, at Pages 43346-43348.

7/20. Sen. Barbara Boxer (D-CA) and Sen. John Rockefeller (D-WV) sent a letter to the Dow Jones and Company (DJC) regarding "phone hacking and bribery in the United Kingdom at properties owned by News Corporation". They wrote that "The American people need to be reassured that this kind of misconduct has not occurred in the United States and that senior executives at News Corporation properties in our country were not aware of or complicit in any wrongdoing." The News Corporation owns the DJC, which in turn publishes the Wall Street Journal.

7/20. The Authors Guild (AG) released a statement regarding the July 19, 2011, status conference before the U.S. District Court (SDNY) in Authors Guild v. Google, the Google books case. The AG wrote that "the parties have been in discussions about an opt-in settlement to the dispute". On March 22, 2011, the District Court issued its opinion [48 pages in PDF] denying, without prejudice, the motion for approval of the proposed class action settlement. The next status conference is scheduled for September 15, 2011. See also, story titled "District Court Rejects Google Books Class Action Settlement" in TLJ Daily E-Mail Alert No. 2,206, March 22, 2011, and story titled "Orphan Works and the Court's Rejection of the Google Book Deal" in TLJ Daily E-Mail Alert No. 2,207, March 23, 2011.

7/20. The U.S.-China Economic and Security Review Commission released a staff report [22 pages in PDF] titled "The Confucian Revival in the Propaganda Narratives of the Chinese Government". It states that "In recent years, the Chinese Communist Party (CCP) has undertaken an official rehabilitation of imperial China's preeminent social philosopher", Confucius. "Once a target of official condemnation in Mao-era China as a relic of the country's feudal past and as an obstacle to the Party's vision of social transformation, Confucius has been revived in official propaganda as a national icon of China's traditional culture, as well as a symbol of the Party's concern for public welfare."

7/20. Rick Kaplan, Chief of the Federal Communications Commission's (FCC) Wireless Bureau sent a letter to counsel for AT&T stating that "we have stopped the Commission's informal 180-day clock". This pertains to the FCC's review of AT&T's proposed acquisition of T-Mobile USA. The FCC has promulgated no procedural rules for it antitrust merger reviews.

CCIA Releases Report on Cloud Computing and Public Policy

7/19. The Computer & Communications Industry Association (CCIA) released a paper [37 pages in PDF] titled "How Public Policy Can Enable Cloud Computing -- Driving Innovation, Investment & Job Creation Beyond the IT Sector".

The CCIA also hosted a panel discussion on July 19 on the subject. The speakers were Michael Nelson (Georgetown University), Phillip Berenbroick (CCIA), Sarah Falvey (Google), Andrew Bridges (Winston & Strawn), and Ed Black (CCIA).

Nelson, who moderated, is a professor at Georgetown University. He previously worked for IBM. Before that, he worked in the Clinton/Gore White House. And before that, he worked for the Senate Commerce Committee's (SCC) Subcommittee on Science, Technology, and Space.

Philip Berenbroick is an attorney at the CCIA. He stated that using cloud service providers (CSP) offers users the advantages of cost savings, increased reliability, and accessibility.

He also discussed several policy proposals. To further accessibility, he advocated policies that further broadband deployment, and affordable broadband. He emphasized Federal Communications Commission (FCC) reform of universal service to cover broadband access, "dig once" legislation that requires installation of fiber optic cable when federal facilities are built, and providing more spectrum, and more efficient use of spectrum, for mobile broadband, through more spectrum sharing and unlicensed use of spectrum, and legislation that gives the FCC voluntary auction authority.

The CCIA report recommends not only "dig once" legislation, but also that "The FCC should continue to work with state and local governments and the private sector to improve policies for right of way and utility pole attachments for fiber optic lines and tower site clearance antennas."

Bridges is an attorney in the San Francisco office of the law firm of Winston & Strawn who counsels and represents technology companies. He focused on issues involving the use of cloud computing services for storage of copyrighted content, including secondary liability of the service provider, statutory damages for copyright infringement, and privacy of the users of the services.

He praised safe harbors, such as that enacted in the Digital Millennium Copyright Act (DMCA) and codified at 17 U.S.C. § 512. He noted that under the DMCA the user receives notice, and can challenge the copyright holder, whereas a filtering system "takes the user out of the equation".

He also said that statutory damages of up to $150,000 per work infringed "has gone awry with companies with extremely broad user bases".

He said that "it has an absolutely chilling effect on start ups". He said, regarding discussions between start ups and content companies, that "there are really hard elbows being thrown under the basket", and that "it requires people to pull back from real innovation".

The CCIA report recommends that "Congress should reexamine whether liability limitations for online services are sufficiently robust to protect cloud providers from being held responsible for content or alleged misconduct by users. If not, Congress should undertake to reform third parties liability laws so as not to inhibit the industry." It also advocates including safe harbor provisions in free trade agreements.

Falvey discussed that nature and advantages of cloud computing. She also cautioned against legislation that would require storing data in the U.S. She said that it would "feed fuel to the fire", leading other nations to enact legislation requiring data to be stored within those nations. Nelson also discussed the importance of transnational data flows.

Nelson said that data breach legislation would push companies to invest in security, but that it must be done right. For example, he cautioned against legislating that the cloud service provider (CSP) must provide the notice to affected users following a breach, because this would require the company using the service to disclose subscriber information to the CSP.

Nelson also said that "we need clarification" on law enforcement access to data stored with a CSP, through reform of the Electronic Communications Privacy Act (ECPA). He said that we do not want people around the world thinking that data stored in the U.S. is too accessible to law enforcement and intelligence agencies.

Ed Black added that the issue also involves access to stored data by divorce lawyers and the county sheriff. He argued the "if the barrier is low ... you undermine the trust and credibility of the system".

The CCIA report recommends that "Congress should reform the ECPA to clarify how it applies to telecommunications carriers. Changes should make clear that ... use of a telecommunications voice and data service is not a disclosure of data to the carrier for purposes of data protection".

The report released at this event covers a much broader range of issues and policy proposals than those discussed at this event.

It recommends updating the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030, "so it is clearly applicable to cyber attacks on cloud computing infrastructure".

It recommends that "The Federal Government should annually review censorship and attacks on Internet freedom by trading partners and highlight such actions in trade reports, as well as continue its recent advocacy for Internet freedom."

It recommends that "The Federal Government should adopt a cloud computing model for data storage and IT." (On Wednesday, July 27, Sen. Tom Carper (D-DE) will host an event on Capitol Hill titled "Cloud Computing and Federal Data Center Consolidation Thought Leadership".)

It recommends reform of patent law, and enforcement of antitrust and consumer protection laws.

It recommends that the FCC expand it rules regulating broadband internet access service (BIAS) providers to cover mobile access.

And, it recommends that "Congress should develop a national framework to prevent states and jurisdictions from engaging in multiple and discriminatory taxation of cloud computing services."

FCC Releases Tentative Agenda for August 9 Meeting

7/19. The Federal Communications Commission (FCC) released a tentative agenda for its event scheduled for August 9, 2011, titled "open meeting". The FCC is scheduled to take up an item pertaining to use of spectrum for wireless backhaul, and several items regarding foreign ownership.

First, the FCC is scheduled to adopt a Report and Order (R&O), Further Notice of Proposed Rulemaking (FNPRM), and Memorandum Opinion and Order (MOO) regarding use of spectrum bands for wireless backhaul.

Second, the FCC is scheduled to adopt a NPRM regarding foreign ownership of wireless phone companies and certain aeronautical licensees, but not foreign ownership of broadcast licensees.

Third, the FCC is scheduled to adopt an Order and Declaratory Ruling regarding the International Bureau's (IB) Foreign Ownership Guidelines and the application of 47 U.S.C. § 310(b)(3) to certain foreign ownership of common carrier and aeronautical licensees, but not foreign ownership of broadcast licensees.

Fourth, the FCC is scheduled to adopt an Order on Reconsideration "addressing two section 310(b)(4) foreign ownership rulings granted to Verizon Wireless in two proceedings approving its acquisitions of Rural Cellular Corporation (RCC) and Alltel Corporation (Alltel)."

This meeting is scheduled to take place on Tuesday, August 9, 2011, at 10:30 AM, in the FCC's Commission Meeting Room., TW-C305, 445 12th St., SW.

Grand Jury Indicts 14 for WikiLeaks Related DDOS Attacks

7/19. The U.S. District Court (NDCal) unsealed an indictment [12 pages in PDF] that charges damage to a protected computer in violation of 18 U.S.C. § 1030, and conspiracy, in connection with retaliatory distributed denial of service (DDOS) attacks directed at PayPal servers after PayPal suspended WikiLeaks' accounts for violating its terms of service (TOS) by publishing classified State Department cables in its web site. WikiLeaks had used PayPal to receive contributions.

Also, the Department of Justice (DOJ) announced in a release that Federal Bureau of Investigation (FBI) agents arrested 14 persons charged in the indictment

In this indictment, the grand jury did not charge WikiLeaks or Julian Assange for publishing classified documents in a web site under the Espionage Act. Rather, the grand jury charged individuals who launched cyber attacks on PayPal servers after PayPal suspended WikiLeaks accounts, under the Computer Fraud and Abuse Act (CFAA).

The indictment states that "In late November 2010, WikiLeaks released a large amount of classified United States State Department cables on its website. Citing violations of the PayPal terms of service, and in response to WikiLeaks' release of the classified cables, PayPal suspended WikiLeaks' accounts such that WikiLeaks could no longer receive donations via PayPal. WikiLeaks' website declared that PayPal's action ``tried to economically strangle WikiLeaks.´´"

The indictment further states that "In retribution for PayPal's termination of WikiLeaks' donation account, Anonymous co-ordinated and executed DDoS attacks against PayPal's computer servers" using an open source computer program named "Low Orbit Ion Cannon".

The indictment adds that "Anonymous referred to these co-ordinated attacks on PayPal as ``Operation  Avenge Assange.´´"

The persons named in the indictment include Christopher Wayne Cooper, Joshua John Covelli, Keith Wilson Downey, Mercedes Renee Haefer, Donald Husband, Vincent Charles Kershaw, Ethan Miles, James C. Murphy, Drew Alan Phillips, Jeffrey Puglisi, Daniel Sullivan, Tracy Ann Valenzuela, and Christopher Quang Vo. The District Court withheld one name.

The DOJ announced in this release that the FBI also "executed more than 35 search warrants throughout the United States as part of an ongoing investigation into coordinated cyber attacks against major companies and organizations."

This case is CR 11-70785 in the U.S. District Court for the Northern District of California, San Jose Division.

Grand Jury Returns Indictment for Unauthorized Downloading of 4.8 Million JSTOR Articles

7/19. The U.S. District Court (DMass) unsealed on July 19, 2011, a four count indictment [15 pages in PDF] returned by a grand jury on July 14, 2001, that charges Aaron Schwartz with unauthorized access to a protected computer system in violation of 18 U.S.C. § 1030, and wire fraud, in connection with his unauthorized accessing of the Massachusetts Institute of Technology's (MIT) computer systems to download digital copies of 4.8 million articles from academic journals in the JSTOR system.

Approximately 1.7 million of these articles were made available by independent publishers for purchase through JSTOR's Publisher Sales Service. The indictment further alleges that "Swartz intended to distribute a significant portion of JSTOR's archive of digitized journal articles through one or more file-sharing sites".

The indictment states that "JSTOR generally charges libraries, universities, and publishers a subscription fee for access to JSTOR's digitized journals" and does not permit users "to download or export content from its computer servers with automated computer programs such as web robots, spiders and scrapers".

The indictment details a long running effort by Schwartz, which began on September 24, 2010, and ended on January 6, 2011, to evade repeated countermeasures taken my MIT and JSTOR to block his downloading.

The indictment alleges that Schwartz, among other things, "contrived to ... break into a restricted computer wiring closet at MIT ... access MIT’s network without authorization from a switch within that closet ... connect to JSTOR's archive of digitized journal articles through MIT's computer network ... use this access to download a major portion of JSTOR's archive onto his computers and computer hard drives ... avoid MIT's and JSTOR’s efforts to prevent this massive copying, measures which were directed at users generally and at Swartz’s illicit conduct specifically; and ... elude detection and identification".

The Department of Justice's (DOJ) U.S. Attorneys Office for the District of Massachusetts added in a release that Schwartz operated at various locations on the MIT campus, but was "not affiliated with MIT as a student, faculty member, or employee".

U.S. Attorney Carmen Ortiz stated in this release that "Stealing is stealing whether you use a computer command or a crowbar, and whether you take documents, data or dollars. It is equally harmful to the victim whether you sell what you have stolen or give it away."

Obama Picks Ohlhausen for FTC Commissioner

7/19. President Obama announced his intent to nominate Maureen Ohlhausen to be a Commissioner of the Federal Trade Commission (FTC). See, White House news office release.

She has worked at the law firm of Wilkinson Barker & Knauer (WBK) since 2009 as a partner in its privacy, data protection, and cybersecurity practice.

She briefly worked for the Business Software Alliance (BSA) in 2009.

From 1997 to 2008 she held several senior positions at the FTC, including advisor to former Commissioner Orson Swindle, Deputy Director of the FTC's Office of Policy Planning (OPP) starting in 2003, Director of the FTC's OPP from 2004 to 2008, and head of the FTC's Internet Task Force.

Obama Picks Mazer for DHS Inspector General

7/19. President Obama announced his intent to nominate Roslyn Mazer to be Inspector General (IG) of the Department of Homeland Security (DHS). See, White House news office release.

She is currently the IG of the Office of the Director of National Intelligence (ODNI). Before that, she worked in the Office of the IG of the Department of Justice (DOJ), where she worked on investigations that reported Federal Bureau of Investigation (FBI) abuse of National Security Letter (NSL) authority.

On March 9, 2007, the DOJ/OIG released a report [30 MB in PDF] titled "A Review of the Federal Bureau of Investigation's Use of National Security Letters". See also, story titled "DOJ IG Releases Reports on Use of NSLs and Section 215 Authority" in TLJ Daily E-Mail Alert No. 1,551, March 13, 2007. On March 13, 2008, the DOJ/OIG released a report [187 pages in PDF] titled "A Review of the FBI’s Use of National Security Letters: Assessment of Corrective Actions and Examination of NSL Usage in 2006". See also, story titled "DOJ Inspector General Releases Second Report on FBI Misuse of National Security Letters" in TLJ Daily E-Mail Alert No. 1,730, March 12, 2008.

House Commerce Committee to Mark Up SAFE Data Act

7/19. The House Commerce Committee (HCC) announced early on July 19 that its Subcommittee on Commerce, Manufacturing and Trade (SCMT) will mark up HR 2577 [LOC | WW | PDF], the "Secure and Fortify Electronic Data Act of 2011", or "SAFE Data Act", on Wednesday morning, July 20, 2011.

The Subcommittee will meet at 10:00 AM in Room 2123 of the Rayburn Building to mark up HR 2577. See, HCC notice.

The Congress is simultaneously considering two bills this week that embody inconsistent data retention policies. On July 20 the HCC's SCMT is scheduled to mark up this bill with a data minimization mandate, while on July 20-21 the House Judiciary Committee (HJC) is scheduled a mark up a bill with a mandate for 18 month retention of certain personally identifiable information. HR 2577 contains an exception for retention of data "necessary to comply with any legal obligation". Nevertheless, the policy goals of the two bills are at odds.

The HJC bill is HR 1981 [LOC | WW], the "Protecting Children from Internet Pornographers Act of 2011". See, stories titled "House Crime Subcommittee Holds Hearing on Data Retention Bill" and "Summary of HR 1981, Data Retention Bill" in TLJ Daily E-Mail Alert No. 2,257, July 13, 2011.

See also, related stories in this issue titled "Rep. Mack Introduces SAFE Data Act" and "Rep. Mack Writes U.S. Trade Groups Regarding U.K. Phone Hacking".

Update on Export Control Reform

7/19. The White House news office issued a release regarding reform of the U.S. export regulation regime. Also, the Department of Commerce (DOC) published proposed rules changes. This most recent development involves moving items from the USML to the CCL.

The executive branch is in the process of revising its outdated and burdensome regulatory regimes. There are two. Although, the goal is to end up with one. The Department of State's (DOS) Directorate of Defense Trade Controls (DDTC) administers the International Traffic in Arms Regulations (ITAR) which controls the export of items on the U.S. Munitions List (USML). This list includes bombs, missiles, naval vessels, chemical agents, and other things that can be used to kill people and destroy things.

The Department of Commerce's (DOC) Bureau of Industry and Security (BIS) administers the Commerce Control List (CCL) among other things. The DOC/BIS regulates dual use items, including things such as software, computers, and encryption products that may also have military uses. This is regulatory regime that is of particular importance to information and communications technologies companies.

This release addresses the need for reform, reviews recent developments, and describes the remarks delivered by President Obama's Chief of Staff, Richard Daley, at a July 19 event.

The release describes Daley's remarks regarding moving items from the USML to the CCL list, under a subheading of "Commerce Munitions List". The release states that "militarily less significant parts and components" will be moved.

It states that "These changes will strengthen U.S. national security by allowing the export control system to focus on controlling the most critical technologies and by enhancing the competitiveness of key sectors."

The DOC's BIS published a notice in the Federal Register on July 15, 2011, that announces, describes, recites, and sets the comment deadline for, the proposed rules changes that implement this change.

The deadline to submit comments is September 13, 2011. See, Federal Register, Vol. 76, No. 136, Friday, July 15, 2011, at Pages 41958-41985.

Frank Vargo of the National Association of Manufacturers (NAM) stated in a release that "Manufacturers urge a continued shift away from the transaction-by-transaction licensing system that is both costly and time-consuming and dampens our ability to export."

He added that "Manufacturers have been calling for sweeping changes that will enhance our national security and contribute to the goal of doubling exports in five years. We look forward to working with the Administration and Congress to swiftly implement additional changes that will enhance interoperability with our allies, boost economic growth and help create manufacturing jobs."

For more on this topic, see story titled "Obama Addresses Export Control Reform Process" in TLJ Daily E-Mail Alert No. 2,185, December 21, 2011.

More News

7/19. The National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) released its draft SP 800-53 Appendix J [24 pages in PDF] titled "Privacy Control Catalog". The deadline to submit comments is September 2, 2011.

7/19. The Discovery Institute (DI) published a short piece titled "Why Not the PROTECT IP Act?". The author is the DI's Hance Haney. He writes that "the PROTECT IP Act is not a nefarious piece of special interest legislation. The unanimous vote in the Senate Judiciary Committee last year reflects the fact that better enforcement of intellectual property rights is in the national interest, particularly during a period of high unemployment. Ultimately, the PROTECT IP Act is about protecting jobs and private investors. Objections to the bill, including the possibility of collateral harm to "innocent" websites and catastrophe if the Internet's highly centralized domain name system unravels, seem a bit overblown." See, S 968 [LOC | WW], the "Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011", or "PROTECT IP Act".

7/19. The Department of Homeland Security (DHS) disclosed that representatives of the DHS and the India Department of Information Technology signed a Memorandum of Understanding (MOU) regarding cyber security. The DHS stated in a release that this MOU promotes "closer cooperation and the timely exchange of information between the organizations of their respective governments responsible for cybersecurity" and "establishes best practices for the exchange of critical cybersecurity information".

7/19. The U.S. District Court (SDNY) held a status conference in Authors Guild v. Google, the Google books case. On March 22, 2011, the District Court, Judge Denny Chin presiding, issued its opinion [48 pages in PDF] denying, without prejudice, the motion for approval of the proposed class action settlement. At the July 19 conference the parties informed the District Court that they have not reached a revised settlement. The District Court set another status conference for September 15, 2011, at 11:00 AM. See also, story titled "District Court Rejects Google Books Class Action Settlement" in TLJ Daily E-Mail Alert No. 2,206, March 22, 2011, and story titled "Orphan Works and the Court's Rejection of the Google Book Deal" in TLJ Daily E-Mail Alert No. 2,207, March 23, 2011.

7/19. The Information Technology and Innovation Foundation (ITIF) released a paper [16 [pages in PDF] titled "U.S. Corporate Tax Reform: Groupthink or Rational Debate?" It recommends that the "Congress should enact an American Innovation and Competitiveness Tax credit that provides a credit of 30 percent on expenditures on R&D and workforce training and a credit of 15 percent on machinery and equipment (including software) in excess of 50 percent of base period expenditures." The author is Rob Atkinson, head of the ITIF. See also, ITIF release.

7/19. Intel announced in a release that "it signed a definitive agreement to acquire" Fulcrum Microsystems, a privately held fabless semiconductor company that designs Ethernet switch silicon for data center network providers. See also, substantially identical Fulcrum Microsystems release.

Strickling Addresses Internet Governance and Policy Making

7/18. Lawrence Strickling, head of the Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA), gave a speech in Washington DC regarding internet governance, the ICANN Board meeting in June, and the OECD's "Communique on Principles for Internet Policy-Making".

Strickling (at right) said that "we have seen more and more instances of restrictions on the free flow of information online, disputes between various standards bodies and even appeals from incumbent carriers in Europe for government intervention on the terms and conditions for exchanging Internet traffic".

He said that "A top priority of the Obama Administration, and in particular, NTIA, is to preserve and enhance the multistakeholder model that has been a hallmark feature of the global Internet institutions that have been responsible for the success of the Internet. Maintaining the openness, transparency, and user choice of today’s Internet can only be sustained and advanced in a world where all stakeholders participate in relevant decision making, not one where governments, or other stakeholders, dominate."

The Internet Corporation for Assigned Names and Numbers (ICANN) Board of Directors, meeting in Singapore on June 24, adopted numerous resolutions.

Strickling said in his June 18 speech that "I am very pleased by the Board's action, which demonstrates a commitment to improving the accountability and transparency of ICANN and to the multistakeholder process of Internet policymaking. Now the focus turns to ICANN management and staff, who must take up the challenge of implementing these recommendations as rapidly as possible and in a manner that leads to meaningful and lasting reform."

The ICANN Board also acted on June 24 to greatly expand the number of generic top level domains, or gTLDs. See also, ICANN release.

Strickling commented on the process followed by the ICANN in making this decision. "In response to long-standing concerns held by governments about the expansion proposal, the ICANN Board held a number of focused exchanges with the Government Advisory Committee to resolve as many of the issues as possible."

He noted that not all of the GAC proposals were implemented, and added that "More important is the fact that the ICANN Board now recognizes the need to bring governments into its multistakeholder policymaking in a more meaningful way. If we are to combat the proposals put forward by others, such as to grant the International Telecommunication Union the authority to veto ICANN Board decisions, we need to ensure that our multistakeholder institutions have provided a meaningful role for governments as stakeholders."

On June 29 the Organisation for Economic Co-operation and Development (OECD) adopted and released a short statement [6 pages in PDF] titled "Communique on Principles for Internet Policy-Making". See, stories titled "OECD Releases Recommendations for Internet Laws, Policies and Practices" and "OECD, Online Copyright Infringement, and Internet Intermediaries" in TLJ Daily E-Mail Alert No. 2,253, July 1, 2011.

Strickling said that this document "reflects a growing global consensus on the value of the multistakeholder approach towards addressing Internet challenges. The principles are not intended to harmonize global law, but rather provide a common framework for companies and governments as they consider Internet policy issues."

He concluded that the U.S. "is most assuredly opposed to establishing a governance structure for the Internet that would be managed and controlled by nation-states. Such a structure could lead to the imposition of heavy-handed and economically misguided regulation and the loss of flexibility the current system allows today, all of which would jeopardize the growth and innovation we have enjoyed these past years. The OECD's policymaking principles are perhaps the clearest statement yet that the United States and like-minded nations oppose treaty-binding regulation of the Internet.

Rep. Mack Introduces SAFE Data Act

7/18. Rep. Mary Mack (R-CA) introduced HR 2577 [LOC | WW], the "Secure and Fortify Electronic Data Act of 2011", or "SAFE Data Act", on Monday, July 18, 2011.

The two key sections of this bill would create a federal data security regime and a federal data breach notification regime. The bill gives the Federal Trade Commission (FTC) APA rulemaking authority, gives enforcement authority to the FTC and states, and provides for federal preemption of state laws.

This bill is similar to a bill from the 111th Congress, HR 2221 [LOC | WW | PDF], the "Data Accountability and Trust Act", introduced by Rep. Bobby Rush (D-IL) on April 30, 2009. The House Commerce Committee's (HCC) Subcommittee on Commerce, Trade and Consumer Protection (SCTCP), which was chaired by Rep. Rush in the 111th Congress, held a hearing on May 5, 2009.

The Subcommittee amended and approved this bill on June 3, 2009. See, story titled "House Commerce Subcommittee Marks Up Data Accountability and Trust Act" in TLJ Daily E-Mail Alert No. 1,948, June 4, 2009. The HCC amended and approved this bill on September 30, 2009. The House passed this bill by voice vote on December 8, 2009.

Rep. Mack is now the Chairman of this Subcommittee, renamed the Subcommittee on Commerce, Manufacturing and Trade (SCMT).

Section 1 only contains the title of the bill.

Section 2 would create a federal data security regime. It would require the FTC to write rules requiring any person engaged in interstate commerce that owns or possesses data containing personal information to establish and implement safeguards for data security.

Section 2 would also impose a minimization requirement. It requires any person to "establish a plan and procedures for minimizing the amount of personal information maintained by such person. Such plan and procedures shall provide for the retention of such personal information only as reasonably needed for the business purposes of such person or as necessary to comply with any legal obligation."

Section 3 would create a federal data breach notification regime, give the FTC rulemaking authority, and direct it to write rules pursuant to Administrative Procedure Act (APA) process.

Section 3 requires that "Any person engaged in interstate commerce that owns or possesses data in electronic form containing personal information related to that commercial activity, following the discovery of a breach of security of any system maintained by such person that contains such data, shall, without unreasonable delay ... notify appropriate Federal law enforcement officials of the breach of security, unless such person determines that the breach involved no unlawful activity".

It also requires identification "without unreasonable delay" of "affected individuals whose personal information may have been acquired or accessed" and notice "not later than 48 hours after" identification, "unless the person makes a reasonable determination that the breach of security presents no reasonable risk of identity theft, fraud, or other unlawful conduct affecting such individuals".

Section 4 provides for enforcement by the FTC and states.

Section 5 contains definitions.

Section 6 provides for federal preemption of state data security and data breach notification laws. It would also remove part of Section 631 of the Communications Act, which is codified at 47 U.S.C. § 551, and which addresses the obligations of cable operators.

Section 7 sets the effective date -- one year after enactment.

See also, HCC summary of this bill.

Rep. Mack Writes U.S. Trade Groups Regarding U.K. Phone Hacking

7/18. Rep. Mary Mack (R-CA) sent letters to five U.S. technology related trade groups asking them to respond to questions regarding the "phone hacking" that has occurred in the United Kingdom, and whether new laws are needed in the U.S.

Rep. Mack (at right) is the Chairman of the House Commerce Committee's (HCC) Subcommittee on Commerce, Manufacturing and Trade (SCMT).

She sent the letter to the US Telecom, Consumer Electronics Association (CEA), National Cable & Telecommunications Association (NCTA), CTIA and Information Technology Industry Council (ITI). She set August 2, 2011 as the deadline for responding.

She asked, "Do you believe existing laws and regulations adequately protect consumers in the United States from phone hacking and similar privacy breaches?"

She also asked, "how difficult is it to hack into cell phones or other mobile devices?" "What steps can consumers take on their own to better protect their personally identifiable information when communicating through either fixed wire or wireless devices?" And, "what safeguards do your member companies employ to ensure that American consumers are adequately protected against the type of phone hacking scandal currently being investigated in the United Kingdom?"

She also asked "do you expect to see a rise in phone hacking here in the United States"? "Approximately how many phone hacking incidents are reported by your member companies in a year?" And, "Are the number of incidents growing or declining?"

Also, "are phone hacking incidents, or suspected incidents, reported to law enforcement agencies and regulatory agencies?"

To the extent that Rep. Mack has asked these groups to state the views of their members, and these groups represent thousands of companies, it is unrealistic to expect all of the groups to survey all of their members within the two week deadline set by the letter.

The House is scheduled to commence its August recess three days after the deadline.

Sen. Leahy Urges Senate to Pass Bill to Extend FBI Director Mueller's Term

7/18. Sen. Patrick Leahy (D-VT) spoke in the Senate on July 18, 2011, to urge it to promptly pass S 1103 [LOC | WW], an untitled bill to extend the term of Federal Bureau of Investigation (FBI) Director Robert Mueller by two years.

Mueller's (at left) ten year term expires on August 2, 2011. Sen. Leahy complained that Senate Republicans are delaying consideration of the bill.

President Obama requested an extension on May 12. See, story titled "Obama Wants to Extend Mueller's Term" in TLJ Daily E-Mail Alert No. 2,240, May 13, 2011. Sen. Leahy and others introduced S 1103 on May 26. See also, story titled "Sen. Leahy Introduces Bill to Extend Mueller's Term" in TLJ Daily E-Mail Alert No. 2,246, May 27, 2011.

By statute, FBI Directors are appointed by the President, and confirmed by the Senate for one ten year term, and "may not serve more than one ten-year term". See, 28 U.S.C. § 532 note. S 1103 would extend Mueller's term to twelve years. All subsequent Directors would have ten year terms.

The Senate Judiciary Committee (SJC) held a hearing on June 8, 2011. The SJC amended and approved the bill on June 16, 2011. The full Senate has not passed this bill. Nor is there a bill in the House.

Sen. Leahy stated in the Senate on July 18 that "The bill was reported over one month ago and action has been stymied by Republican objections every since."

"At first it was reportedly Senator Coburn who was holding up consideration of the bill, then Senator DeMint, and now apparently it is an objection by Senator Paul of Kentucky that is preventing the Senate from proceeding." Sen. Leahy conclude, "I urge the Senate to take up this critical legislation and pass it without further delay."

Timothy Murphy is the Deputy Director of the FBI.

MPAA and Copyright Alliance Comment on CCIA Report on Fair Use

7/18. The Motion Picture Association of America (MPAA) and Copyright Alliance (CA) commented on the report [PDF] released on July 11, 2011, by the Computer and Communications Industry Association (CCIA) titled "Fair Use in the U.S. Economy: Economic Contribution of Industries Relying on Fair Use". See also, story titled "CCIA Releases Report on Importance of Fair Use to U.S. Economy" in TLJ Daily E-Mail Alert No. 2,258, July 15, 2011.

The MPAA's Michael O'Leary wrote in a short piece that "many of the ``fair use industries´´ the report suggests would in some way be harmed by stopping the massive proliferation of online content theft include the people and organizations whose work and livelihoods are most at risk from that theft".

The CA's Sandra Aistars wrote in another piece that "Most of the jobs and industry cited in this paper could just as easily (and more accurately) be characterized as being supported by intellectual property rights and enforcement. Software developers are also copyright owners. Manufacturers of MP3 players and DVRs are patent holders. As are most Internet search engines and hosting providers. Ironically included in the numbers CCIA holds up as ``fair use industries´´ are other copyright industries". (Parentheses in original.)

She also argued that "copyright enforcement and fair use are not at odds, nor are creators and technologists. This is a false choice. Copyright, innovation, creativity and technology are interconnected as never before".

FCC Sets 2015 Deadline for LPTV Digital Transition

7/18. The Federal Communications Commission (FCC) adopted and released a Second Report and Order [49 pages in PDF] regarding low power television transition from analog to digital signals.

This item sets a hard deadline of September 1, 2015 for LPTV transition to digital.

FCC Commission Robert McDowell wrote in a statement that "The one thing I learned from my involvement with the full power DTV transition is to expect the unexpected. As was the case with the first digital transition, unanticipated challenges are bound to arise."

FCC Commission Michael Copps wrote in a statement that "The clearest lesson learned from the Full Power DTV transition is the amount of preparation that is needed in advance in order to best educate the impacted citizens and to be ready to respond to the unpredictable and the unexpected."

This items states that the FCC decides to:

"(1) adopt a hard deadline of September 1, 2015 for the termination of all analog low power television facilities;
(2) establish rules permitting those stations needing additional time to complete their digital transition to obtain a ``last minute´´ extension;
(3) require existing analog and digital low power television stations in the 700 MHz band (channels 52-69) to submit displacement applications by September 1, 2011, and to cease operations in the 700 MHz band by December 31, 2011;
(4) increase the power limits for VHF low power television channels to 3 kilowatts (the current analog power limit);
(5) delegate to the Media Bureau the authority to establish timeframes and procedures for stations that have not already converted to notify the Commission of their conversion plans;
(6) widen the class of low power television broadcasters subject to the Commission’s ancillary and supplementary fee rules;
(7) modify the Commission’s minor change rule so that it covers a proposed change in a low power television station’s transmitter site of up to 30 miles (48 kilometers) from the reference coordinates of the station’s transmitting antenna;
(8) revise the vertical antenna patterns used in the prediction methodology for the low power television services; and
(9) allow low power television stations to use the emission mask used by full power television stations."

This item is FCC 11-110 in MB Docket No. 03-185.

People and Appointments

7/18. The Senate confirmed Paul Oetken to be a Judge of the U.S. District Court for the Southern District of New York by a vote of 80-13. See, Roll Call No. 112. All 13 no votes were cast by Republicans. 6 of the 7 who did not vote are Republicans. Oetken has been an in house counsel for Cablevision System Corporation.

7/18. Mera Szendro Bok will join the Media Access Project (MAP) as Communications and Development Director on August 1, 2011 See, MAP release.

More News

7/18. The U.S. District Court (WDMich) sentenced Jeremy R. Sheets to serve 15 months in prison, pay a $12,000 fine, and to pay $115,534 in restitution following his previous plea of guilty to wire fraud in connection with his defrauding the Federal Communications Commission's (FCC) waste, fraud and abuse plagued e-rate tax and subsidy program. See, Department of Justice (DOJ) release.

Go to News from July 11-15, 2011.