TLJ News from May 6-10, 2013

FCC Requests Comments on Possible IP Transition Trials

5/10. The Federal Communications Commission (FCC) released a Public Notice (PN) [14 pages in PDF] that requests public comments regarding its proposals to conduct three limited "real-world trials to obtain data" regarding transitioning public switched telephone network technology to all internet protocol networks.

This PN states that "We seek comment on several potential trials relating to the ongoing transitions from copper to fiber, from wireline to wireless, and from time-division multiplexing (TDM) to IP."

This PN does not propose actually trials in designated wire centers, as AT&T has been requesting. See, AT&T's November 7, 2012 petition [26 pages in PDF], and AT&T's May 6, 2013 notice of ex parte meeting. Rather, it merely proposes to collect data on three topics.

AT&T wrote in its petition that "the Commission should open a new proceeding to conduct, for a number of select wire centers, trial runs for a transition from legacy to next-generation services, including the retirement of TDM facilities and offerings. As part of that proceeding, the Commission would invite ILECs to propose individual wire centers for such an experiment and a detailed plan identifying the steps those carriers will take in each wire center to transition from TDM to IP-based facilities and services. Specifically, the plan would identify the modifications each carrier will make to its network to effect the transition, as well as the services it will offer in place of legacy wireline services. And it would supply a timeline for these changes. The Commission also would solicit broad public comment on how best to remove the legal and regulatory impediments to the trial itself and the ultimate transition to all-IP networks and services. The Commission would then implement these trial runs and, within a year of the proceeding's inception, assess the results while considering broader industry-wide reforms." (See, page 6.)

The Commission did not vote on this PN. It was issued jointly by several FCC components under the rubric of the Technology Transitions Policy Task Force. However, each Commissioner released a statement. The three Democrats praised the PN. The lone Republican criticized it.

FCC Commissioner Ajit Pai wrote in his statement that "Today's public notice is a missed opportunity. Rather than establish well-defined trials to test the Internet Protocol (IP) transition in a set of designated wire centers -- what I have called an All-IP Pilot Program -- the Technology Transitions Policy Task Force instead proposes several case studies to examine what market actors are already doing."

Ajit PaiPai (at right) wrote that the FCC "is at a crossroads. We can embrace the future by expediting the IP Transition. Or we can cling to the past by saddling next-generation networks with regulatory constructs from the 1880s. After today's public notice, I am more uncertain than ever which path we are taking."

Julius Genachowski wrote in his statement that "The ongoing transitions must be handled in a way that advances the Commission's vital longstanding goals of competition, universal service, consumer protection and public safety."

Mignon Clyburn wrote in her statement that she is "pleased". Jessica Rosenworcel wrote in her statement that she supports the PN. She wrote that she is concerned about the effect that actual trials might have on "universal access", negotiation of interconnection agreements, public safety communications and consumer protection.

AT&T's Jim Cicconi stated in a release that this "is a step forward, though we are disappointed the FCC still appears tentative about dealing with the IP transition, especially when compared with the bold and visionary goals of the National Broadband Plan."

He continued that "this notice might yield some interesting information, and we will of course cooperate fully with the FCC. We also intend to provide further detail on our proposed geographic trials as requested today, though we are puzzled it took the FCC six months to decide it needed such information. We continue to believe that controlled, comprehensive geographic trials will more likely identify problems and allow the crafting of solutions. We also believe that further delays by the FCC in moving to such trials, which they themselves would control, creates more investment uncertainty. We hope the FCC will consider today’s notice as a first step, one that will ultimately be followed by the more thorough exploration of issues that its own National Broadband Plan challenges us to undertake."

Tech Freedom stated in a release that "The FCC is anxiously putting one toe halfway in tepid water with today's proposal. Facilitating the transition from outdated switched telephone networks to native Internet alternatives should be embraced boldly and proudly by the agency. ... A true IP transition trial would start by completely replacing traditional switches with native IP infrastructure in a small test area to see what, if any, technical or service problems arise. Instead, what the FCC calls a ``trial´´ is simply more delay -- investigating three specific issues related to the Transition by simulating conditions likely to occur."

Harold Feld of the Public Knowledge (PK) praised the FCC's PN in a release, in which he argued that AT&T seeks "reckless changes with no accountability", and that AT&T is run by fools.

Feld wrote that "Those who think the FCC is moving too slowly and should have moved directly to some undefined trial, as proposed by AT&T in November, should recall who rushes in where angels fear to tread." Alexander Pope wrote in his 1711 poem [Amazon] titled "An Essay on Criticism" that "fools rush in where angels fear to tread".

Philip Jones, President of the National Association of Regulatory Utility Commissioners (NARUC), stated in a release that "we are pleased the agency recognized the important role State regulators play in protecting consumers. Specifically, the Commission acknowledged NARUC's Presidential Task Force on Federalism and Telecommunications, which we established last year. Our Task Force is making considerable progress in developing policy recommendations on telecommunications regulation. As the FCC notes in today’s order, the telecommunications marketplace is changing every day. New technologies are providing consumers with an incredible array of options, but no new handset or exciting ‘app’ changes the suppliers’ obligation to serve. We look forward to working with the FCC—protecting consumers will take a strong Federal-State relationship. Our formal comments on today’s proposal will be filed in compliance with the commission’s deadlines."

This PN is DA 13-1016 in GN Docket No. 13-5. See also, GN Docket No. 12-353. Initial comments will be due within 45 days of publication of a notice in the Federal Register (FR). Reply comments will be due with 75 days of such publication. As of the May 15, 2013 issue of the FR, this notice had not yet been published.

IRS Admits That It Discriminated Against Tea Party Groups

5/10. Lois Lerner, of the Internal Revenue Service (IRS), gave a speech in Washington DC to a meeting of the American Bar Association (ABA) in which she disclosed IRS discriminatory treatment of tea party groups that had applied for tax exempt status in the run up to the 2012 elections.

Lerner stated that the IRS had targeted groups that filed applications made pursuant to 26 U.S.C. § 501(c)(4) for tax exempt status that used the words "patriots" or "tea party". This section of the Internal Revenue Code provides an exemption from the tax on corporations for "Civic leagues or organizations not organized for profit ...".

The IRS's disparate treatment included lengthy additional demands for information. Lerner stated that the IRS's actions were "incorrect" and "inappropriate".

The IRS sent to the targeted groups interrogatories that made numerous demands for information about, and copies of, online advertising, e-mail and other communications, and use of social media.

The IRS also sought information about third parties. For example, the IRS demanded information about news media that covered these targeted groups. The IRS required targeted applicants to disclose, among other things, "Interviews with news media". The IRS also demanded "copies of articles printed or transcripts of items aired". See, for example, samples of IRS interrogatories sent to targeted applicants.

Similarly, the IRS demanded the "names of donors", and propounded numerous other interrogatories related to these donors.

The IRS also sought copies of communications with members of legislative bodies.

Various IRS powers, like the Federal Communications Commission's (FCC) media ownership regulatory regime, have been exploited in the past by both Democratic and Republican administrations for improper political purposes.

Early last year the Department of the Treasury's (DOT) Treasury Inspector General for Tax Administration (TIGTA) began a report on this matter. It has not yet released this report.

Twelve Republican Senators sent a letter to the IRS on March 14, 2012 regarding this matter, and posing numerous questions. For example, they asked, "Is every 501(c)(4) applicant required to provide the IRS with copies of all social media posts, ... ?"

They also asked for "copies of all IRS inquiries sent to and responses received from Priorities USA", which is a Section 501(c)(4) entity associated with a pro-Obama political action committee.

Ten Republican Senators sent a second letter on June 18, 2012.

Also, Rep. Darrell Issa (R-CA), Chairman of the House Oversight and Government Reform Committee (HOGRC), and Rep. Jim Jordan (R-OH), Chairman of the HOGRC's Subcommittee on Regulatory Affairs, Stimulus Oversight and Government Spending, sent a letter to the IRS on June 28, 2012, regarding this matter.

Rep. Issa and Rep. Jordan stated in a release on May 10, 2013 that "The fact that Americans were targeted by the IRS because of their political beliefs is unconscionable. The Committee will aggressively follow up on the IG report and hold responsible officials accountable for this political retaliation."

The American Center for Law and Justice (ACLJ), legal counsel to some of the targeted groups, stated in a May 10, 2013 release that "Last Spring, dozens of Tea Party groups reported the IRS was not only holding up applications for tax-exempt status, it was also asking a series of intrusive questions that clearly violated the groups’ right of free association. At the ACLJ, we ultimately represented 27 Tea Parties from 18 states and began the painstaking process of resisting, group by group, the IRS's demands."

Numerous other House and Senate Republicans rushed to condemn the IRS's tactics.

Sen. Orrin Hatch (R-UT), the ranking Republican on the Senate Finance Committee (SFC), which oversees the IRS, stated in a release that this IRS tactic is "Nixonian".

He wrote that "While I'm glad to see the IRS apologize for unfairly targeting conservative groups, this frankly isn’t enough. We need to have ironclad guarantees from the IRS that it will adopt significant protocols to ensure this kind of harassment of groups -- whether liberal, conservative or moderate -- that have a constitutional right to express their own views never happens again. As several Senators and I wrote to the IRS last year, there can be no tolerance for the IRS being turned into a political weapon; it has a chilling and, frankly, Nixonian effect on those who wish to speak their mind. I will be discussing this further with the head of the IRS and expect a full briefing and report as to how this happened."

Sen. Mitch McConnell (R-KY), the Senate Minority Leader, stated in a release that "Today's acknowledgement by the Obama administration that the IRS did in fact target conservative groups in the heat of last year’s national election is not enough. Today, I call on the White House to conduct a transparent, government-wide review aimed at assuring the American people that these thuggish practices are not underway at the IRS or elsewhere in the administration against anyone, regardless of their political views."

He concluded that "This kind of political thuggery has absolutely no place in our politics."

Sen. Paul Introduces Tax Repatriation Bill

5/9. Sen. Rand Paul (R-KY) introduced S 911 [LOC | WW], the "Emergency Transportation Safety Fund Act", a bill that would amend the Internal Revenue Code (IRC) to incent repatriation of profits earned by foreign subsidiaries of U.S. companies, and use some of the tax revenues collected by such repatriation for the interstate highway system, roads and bridges, and other transportation emergency priorities.

This bill would amend 26 U.S.C. § 965, titled the "Temporary dividends received deduction", which currently provides for a 85% deduction for certain "cash dividends" received by a "United States shareholder" from "controlled foreign corporations". However, Section 965, which was enacted as part of the 2004 "America Jobs Creation Act" or "AJCA", provided only a limited one time provision, to be exercised by 2006. Hence, until this section is amended, it provides no repatriation deduction.

See, full story.

Sen. McCain Introduces Multichannel Video Programming Bill

5/9. Sen. John McCain (R-AZ) introduced S 912 [LOC | WW | PDF], the "Television Consumer Freedom Act of 2013", a bill that would make several changes to law regarding multichannel video programming.

First, it would create disincentives to not providing a la carte channel offerings. Second, it would effectively require that broadcasters retransmit the same signal over the air, without degradation, that they retransmit to an MVPD. Third, it would eliminate the sports blackout rule for events that are held in publicly financed stadiums.

There are no original cosponsors of this bill. It was referred to the Senate Commerce Committee (SCC).

The SCC's Subcommittee on Communications, Technology, and the Internet will hold a hearing titled "The State of Video" at 10:30 AM on Tuesday, May 14, 2013.

Sen. John McCainSen. McCain (at right) has long advocated, unsuccessfully, for legislation or Federal Communications Commission (FCC) rules, that would mandate or encourage a la carte offering of cable channels. He said that this bill would "encourage the wholesale and retail unbundling of programming by distributors and programmers". (See, Congressional Record, May 9, 2013, at Page S3330-1, and transcript in Sen. McCain's web site.)

He complained that the "video industry -- principally cable companies and satellite companies and the programmers that sell channels, such as NBC and Disney-ABC" have offered consumers only packages of channels, and rising prices.

He said that the companies "that provide video directly to consumers, such as cable and satellite companies, are not solely to blame for the high prices consumers face today". There are also the "video programmers such as Comcast, NBC, Time Warner, Viacom, and the Walt Disney Company, which owns 80 percent of ESPN".

He said that this bill "would eliminate regulatory barriers to a la carte by freeing up multichannel video programming distributors, such as cable, satellite, and others offering video services, to offer any video programming service on an a la carte basis."

A La Carte. First, while this bill would not mandate that multichannel video programming channels be offered on an a la carte basis, it would make several changes to law to incent a la carte offerings.

Sen. McCain explained that "In order to give these companies an incentive to offer programming on an a la carte basis, the legislation links the availability of the compulsory copyright license to the voluntary offering of a la carte service by the MVPD. In other words, if these companies do not offer a broadcast station and any other channels owned by the broadcaster on an a la carte basis, then that company cannot rely on the compulsory license to carry those broadcast stations. The compulsory license is a benefit conferred on these corporations, so it is reasonable to ask the recipients of that benefit to provide consumers with an a la carte option. I emphasize ``an option.´´"

The bill provides that a multichannel video programming distributor (MVPD) "may provide subscribers with any channel of video programming on an la carte basis".

The bill further provides that "the retransmission by" a MVPD "of a local commercial television station that has elected retransmission consent under" 47 U.S.C. § 325(b) "shall not be subject to the statutory license under" 17 U.S.C. § 111(c) and 17 U.S.C. § 122 if the MVPD "does not offer such local commercial television station, and any other channels of video programming under common control with such local commercial television station, for purchase by subscribers on an a la carte basis".

Sen. McCain also said that "To address the notion that a la carte options are being denied distributors, the legislation conditions important regulatory benefits such as network nonduplication, syndicated exclusivity, blackout rights, and retransmission consent option on the programmers, allowing MVPDs to sell their channels on an a la carte basis."

To this end, the bill provides that "a local commercial television station may not elect retransmission consent under section 325(b) ... or avail itself of the protections of the network program non-duplication and syndicated exclusivity regulations ... if such local commercial television station, and any other channels of video programming under common control with such local commercial television station, is not made available to" MVPDs "for purchase or sale on an a la carte basis". (See, FCC regulations regarding network non-duplication protection, syndicated exclusivity and sports blackout, which are codified at 47 C.F.R. 76.92 et seq.)

Also, the bill provides that a video programming vendor (VPV) "may offer a channel of video programming for purchase by a" MVPD "as part of a package of video programming only if such" VPV "also offers such channel of video programming for purchase by the" MVPD "on an a la carte basis".

Finally, the bill provides that if a MVPD and a VPV "fail to reach agreement regarding the terms, including price, for the purchase by the" MVPD "of the right to provide subscribers with a local commercial television station or other channel of video programming from the" VPV on an a la carte basis, the MVPD and the VPV each shall disclose to the FCC the terms of the most recent offer made by the MVPD and the VPV, respectively.

Withdrawal or Downgrading of Over the Air Signals. This bill would amend 47 U.S.C. § 325(b) to provide that "A television broadcast station that does not retransmit the signal over-the-air that is identical to the signal retransmitted to a multichannel video programming distributor shall forfeit any spectrum license of such television broadcast station."

Sen. McCain explained that this "responds to statements by broadcast executives that they may downgrade the content of their over-the-air signals or pull them altogether so that the program received by MVPD customers is preferable to that available over the air."

He said that broadcasters have "public service obligations", and it "would be a distortion of this basic social compact if over-the-air viewers were treated as second-class citizens."

Sports Blackout Rules. The FCC's sports blackout rules, which are codified at 47 C.F.R. §§ 76.111, 76.120, 76.127-130, prohibit MVPDs from carrying a sporting event if the event is blacked out on local broadcast television stations.

Currently, only National Football League (NFL) games are subject to blackouts. Overall, only about 6% of NFL games are blacked out. However, the percentage is much higher for some locations.

This bill would require the FCC to amend its rules "to prohibit the application of sports blackout regulations to the broadcast of a sporting event taking place in a venue the construction of which was financed, in whole or in part, by the Federal Government or a State or local government."

Sen. McCain stated that "When the venues in which these sporting events take place have been the beneficiary of taxpayer funding, it is unconscionable to deny those taxpayers who paid for it the ability to watch the games on television when they would otherwise be available. Therefore, the bill proposes to repeal the sports blackout rules so far as they apply to events taking place in publicly financed venues and/or involve a publicly financed local sports team."

On November 14, 2011 the Sports Fan Coalition, Public Knowledge (PK), Media Access Project (MAP), National Consumers League, and League of Fans filed a Petition for Rulemaking [21 pages in PDF] with the FCC asking that it eliminate its sports blackout rules.

They wrote that "the Sports Blackout Rule supports blatantly anti-fan, anti-consumer behavior by professional sports leagues who charge exorbitant prices for tickets, then punish fans by blacking out games from television because a few seats remain unsold. Moreover, when professional and collegiate sports enjoy vast public subsidies in the form of taxpayer-funded stadiums".

The FCC sought and received public comments. See, request for comments, DA 12-44 in MB Docket No. 12-3.

The petitioners' submitted comments and comments. They argued that "The leagues are at the root of the problem because they currently charge exorbitant prices for tickets, which in turn results in lower attendance. The leagues then punish fans by blacking out games from television because a few seats remain unsold, under the theory that doing so will help ticket revenues and avoid television images of empty seats."

The National Association of Broadcasters (NAB) submitted comments and comments opposing elimination. It wrote that "The so-called sports blackout rules contained in Part 76 of the Commission's rules are not the source of sports blackouts. Sports blackouts stem from privately negotiated agreements that sports leagues use to provide geographic distribution rights to sports content. These private agreements facilitate access to sports content on free, over-the-air television. The sports blackout rules serve to prevent multichannel video program distributors (``MVPDs´´) from using statutory compulsory copyright licenses to circumvent the sports leagues' privately negotiated contracts for distribution of their content."

The NAB argued that "Contrary to Petitioners' assertions, there is no evidence that elimination of the FCC.s rules will alter those private contractual agreements, eliminate the relatively few blackouts that occur, or cause sports leagues to lower ticket prices. These assertions are purely speculative, and the Commission cannot, and should not, rely upon them to eliminate the sports blackout rules." (Footnotes omitted.)

The NFL submitted comments opposing elimination. It also submitted an ex parte comment on October 3, 2012, in which it argued that the "FCC's sports blackout rule serves the public interest by promoting popular sports to remain on broadcast television and in that context protects the broadcast model."

The NFL added that the FCC’s sports blackout rule, coupled with the network nonduplication and syndicated exclusivity rules, provide a necessary counterbalance to the compulsory copyright rule and that it would be unfair and unwise to get rid of these safeguards while maintaining the compulsory copyright."

A group of sports economists submitted comments [23 pages in PDF] in which they argued that "Research on the economics of sports and broadcasting lends no support to the concerns that have been expressed by the NFL and broadcasters. There is no evidence that the current blackout practices of the NFL have a significant effect on attendance, revenues, profits and the allocation of television rights between over-the-air and MVPDS broadcasters. The current FCC rules do not pertain to the actual blackout practices in any league except the NFL, and even in the NFL, the FCC's blackout rules are more symbolic than real. If the FCC eliminates its blackout rules, the NFL can continue the status quo through provisions in its television contracts."

See also, comments submitted by Sen. Richard Blumenthal (D-CT), Sen. Sherrod Brown (D-OH), Sen. Frank Lautenberg (D-NJ), Sen. Tom Harkin (D-IA), and Sen. Debbie Stabenow (D-MI).

Reaction. The National Cable and Telecommunications Association (NCTA) stated in a release that "In a thriving marketplace that is constantly providing consumers with new services and features, a government-mandated a la carte system is a lose-lose proposition. As countless studies have demonstrated, subscription bundles offer a wider array of viewing options, increased programming diversity and better value than per channel options."

The NCTA added that "In today's video marketplace, consumers enjoy more choice than ever before. They can choose their video entertainment from a variety of cable, satellite, telco and online providers; they can consume video on their TVs, their iPads, and their mobile phones; and they can purchase video via traditional subscription bundles, online bundles and individual shows. In the face of such innovation and expansion, attempting to force retail models on private providers is unnecessary and counterproductive."

Matthew Polka, head of the American Cable Association (ACA), stated in a release that "Sen. McCain's new bill highlights a point that many, including ACA, have been making for a long time, which is that programmers use their formidable market power to impose tying-and-bundling requirements on unwilling distributors. The result is that consumers must subscribe to large pay-TV packages that are populated with dozens of unwanted channels."

However, Polka continued that the "ACA does not believe that mandated retail a la carte for every channel offered is the answer, but we look forward to working with Sen. McCain in helping shape policies that deal with the influence of programmers in a manner that gives distributors the genuine ability to create consumer-friendly programming packages as a substitute for the all-or-nothing status quo that enriches programmers but frustrates millions of consumers."

The Sports Fans Coalition stated in a release that Sen. McCain "did sports fans a huge solid by including a provision in his new telecom bill that would eliminate the sports blackout rule in stadiums that have received, in part or whole, public financing. Sports Fans Coalition applauds Sen. McCain for standing up for fans and putting an end to this antiquated and unethical practice."

Obama Signs Executive Order Regarding Access to Government Data

5/9. President Obama issued an Executive Order (EO) that states that the "Director of the Office of Management and Budget (OMB), in consultation with the Chief Information Officer (CIO), Chief Technology Officer (CTO), and Administrator of the Office of Information and Regulatory Affairs (OIRA), shall issue an Open Data Policy to advance the management of Government information as an asset".

This EO states in its recitation of principles that "the default state of new and modernized Government information resources shall be open and machine readable. Government information shall be managed as an asset throughout its life cycle to promote interoperability and openness, and, wherever possible and legally permissible, to ensure that data are released to the public in ways that make the data easy to find, accessible, and usable. In making this the new default state, executive departments and agencies (agencies) shall ensure that they safeguard individual privacy, confidentiality, and national security." (Parentheses in original.)

This EO also states that the federal government long ago made available both weather and Global Positioning System (GPS) data.

Todd Park, an Assistant to the President and Chief Technology Officer, stated at a news conference that this is "a historic executive order that will make information generated and stored by the federal government more open and accessible to innovators and the public to fuel entrepreneurship and economic growth while increasing government transparency and efficiency." See, transcript.

He continued that the EO "and an accompanying open data policy requires that, going forward, new and modernized federal information resources will be made available in open, machine-readable formats while appropriately safeguarding privacy, confidentiality and security."

He added that "This move will make troves of previously inaccessible or unmanageable data easily available to entrepreneurs, researchers and others who can use that data to generate new products and services, build businesses and create jobs."

Sen. Tom Carper (D-DE) stated in a release that "We must strive to enable the American people to access high-quality government information and services anywhere at any time. Making sure this data is accessible, while adhering to security standards, will make our government more inclusive and provide a valuable return on the taxpayer dollars invested in these programs."

Copyright Office Releases Revised NPRM on Auditing Statements of Account

5/9. The Copyright Office (CO) published a notice in the Federal Register (FR) that announces, describes, recites, and requests comments on, proposed rules regarding allowing copyright owners to audit the Statements of Account and royalty fees that cable operators and satellite carriers deposit with the CO for secondary transmissions of broadcast programming made pursuant to statutory licenses under 17 U.S.C. §§ 111 and 119.

Initial comments are due by 5:00 PM on June 10, 2013. Reply comments are due by 5:00 PM on June 24, 2013. See, FR, Vol. 78, No. 90, May 9, 2013, at Pages 27137-27153. This proceeding is CO Docket No. 2012-5.

The CO previously published a notice in the FR with proposed rules. See, FR, Vol. 77, No. 115, Thursday, June 14, 2012, at Pages 35643-35652. See also, story titled "Copyright Office Issues Proposed STELA Rules Regarding Auditing Statements of Account" in TLJ Daily E-Mail Alert No. 2,398, June 18, 2012.

The just released notice states that the CO "has revised the proposed regulation based on comments that it received from copyright owners, cable operators, and satellite carriers".

See, comments [10 pages in PDF] of the American Cable Association (ACA), comments [17 pages in PDF] of the National Cable & Telecommunications Association (NCTA), comments [11 pages in PDF] of AT&T, comments [3 pages in PDF] of Directv, comments [11 pages in PDF] of DISH, and comments [21 pages in PDF] of numerous copyright owner groups.

Judicial Appointments

5/9. The Senate confirmed Nelson Roman to be a Judge of the U.S. District Court for the Southern District of New York by a vote of 97-0. See, Roll Call No. 118. See also, Congressional Record, May 9, 2013, at Page S3353. He was previously a Judge of the New York State Supreme Court. See, Roman's Senate Judiciary Committee (SJC) questionnaire responses, and responses to supplemental questions from individual Senators.

5/9. President Obama nominated Gregory Woods to be a Judge of the U.S. District Court for the Southern District of New York. See, White House news office release and release. Woods is currently General Counsel at the Department of Energy. Before that, he was Deputy General Counsel at the Department of Transportation. From 1998 through 2009 he worked in the New York City office of the law firm of Debevoise & Plimpton.

5/9. The Senate confirmed Shelly Dick to be a Judge of the U.S. District Court for the Middle District of Louisiana. See, Congressional Record, May 9, 2013, at Page S3353.

5/9. President Obama nominated Madeline Haikala to be a Judge of the U.S. District Court for the Northern District of Alabama. See, White House news office release and release. She has briefly served as a Magistrate Judge in this District. Before that, she worked for 22 years at the Birmingham, Alabama law firm of Lightfoot Franklin & White.

More People and Appointments

5/9. President Obama formally nominated Tom Wheeler to be member of the Federal Communications Commission (FCC) for the remainder of the term expiring June 30, 2013, and for a term of five years from July 1, 2013. See, White House news office release. The President announced on May 1 that he would make this nomination. See, story titled "Obama to Nominate Tom Wheeler to Be FCC Chairman" in TLJ Daily E-Mail Alert No. 2,556, May 1, 2013.

5/9. President Obama formally nominated Penny Pritzker to be Secretary of Commerce. See, White House news office release. He announced on May 6 that he would make this nomination. See, story titled "President Obama Picks Democratic Fund Raiser for Secretary of Commerce" in TLJ Daily E-Mail Alert No. 2,557, May 6, 2013.

5/9. President Obama nominated Rose Gottemoeller to be Under Secretary of State for Arms Control and International Security. See, White House news office release.

5/9. The Senate Judiciary Committee (SJC) began an executive business meeting on May 9, 2013. It will resume on May 14. The main item on the agenda is mark up of a huge immigration bill. The agenda also included approval of the nominations of Srikanth Srinivasan (USCA/DCCir), Raymond Chen (USCA/FedCir), and Jennifer Dorsey (USDC/DNev). All three nominations were held over.

WTO Panel Recommends Roberto Azevedo to be Next DG

5/8. A three member panel of the World Trade Organization (WTO) recommended that Roberto Azevêdo be named the next Director General (DG) of the WTO. He would replace Pascal Lamy. See, WTO release.

Azevedo has been the Permanent Representative of Brazil to the WTO since 2008. He has also represented Brazil before the World Intellectual Property Organisation (WIPO), the United Nations Conference for Trade and Development (UNCTAD), and the International Telecommunications Union (ITU).

Acting U.S. Trade Representative Demetrios Marantis stated in a release that "The United States is pleased to join the consensus decision that has selected Roberto Azevêdo as the next Director-General of the WTO, and we look forward to working with him and with our fellow Members for a robust, relevant, and productive organization in the years to come."

EC Commissioner for Trade Commissioner Karel De Gucht praised the selection. He stated in a release that "we are convinced that Mr Carvalho de Azevêdo will help all the WTO members put the multilateral agenda back on track with the ultimate aim of a successful conclusion of the Doha Development Agenda (DDA)."

More People and Appointments

5/8. Amy Hood was named Chief Financial Officer of Microsoft, effective immediately. She replaces Peter Klein. See, release.

OUSTR Seeks Comments on Japan's TPP Participation

5/7. The Office of the U.S. Trade Representative (OUSTR) announced that it seeks public comments on, and will hold a public hearing on, Japan's participation in the Trans Pacific Partnership (TPP) trade agreement negotiations.

The OUSTR seeks comment on, among other topics, "relevant trade-related intellectual property rights issues" and "relevant electronic commerce and cross-border data flow issues that should be addressed in the TPP negotiations". See, notice in the Federal Register, Vol. 78, No. 88, May 7, 2013, at Pages 26682-26684.

The hearing will be held at 9:30 AM on July 2, 2013, in the Main Hearing Room, U.S. International Trade Commission, 500 E St., SW.

The deadline to submit requests to testify at the hearing is 11 59 PM on June 9. The deadline to submit written comments is also 11:59 PM on June 9.

See also,

Senate Confirms Medine for PCLOB

5/7. A divided Senate confirmed David Medine to be the Chairman and a Member of the Privacy and Civil Liberties Oversight Board (PCLOB) for a term ending on January 29, 2018.

The Senate approved Medine on a roll call vote of 53-45. See, Roll Call No. 114. It was a straight party line vote. All of the yes votes were cast by Democrats. All of the no votes were cast by Republicans. However, there was little debate.

The Senate previously confirmed other nominees for the PCLOB. The Senate Judiciary Committee (SJC) held a hearing on PCLOB nominees on April 18, 2012. See, story titled "Senate Judiciary Committee Holds Hearing on PCLOB Nominees" in TLJ Daily E-Mail Alert No. 2,375, April 19, 2012.

Medine went to work in April of 2012 at the Securities and Exchange Commission (SEC) as an Attorney Fellow handling financial privacy issues in the SEC's Division of Corporate Finance.

Before that he worked for a decade at the law firm of Wilmer Hale. Before that he worked in the Executive Office of the President (EOP) at the end of the Clinton administration. Before that he worked for over a decade at the Federal Trade Commission (FTC) in its Financial Practices Division, where he worked on privacy issues.

Sen. Charles Grassley (R-IA), the ranking Republican on the SJC, stated that "At the hearing, I asked a number of questions about the various national security statutes that the Board is tasked with overseeing. This included questions about the Foreign Intelligence Surveillance Act and the PATRIOT Act. Specifically, I asked for his views on these laws. Unfortunately, the responses I received failed to provide his views. He simply stated that he would balance the views of the government against the Board's mandate to review privacy." See, Congressional Record, May 7, 2013, at Page S3104.

Sen. Grassley also said that "if we face a threat from an unfriendly nation, it is important that we have the ability to limit immigration from that country. At the least, immigration and customs agents and consular officers should be able to make decisions of admissibility solely on country of origin. I asked this same question to the other four current members of the Board -- two Democrats and two Republicans. They all answered the same way, that foreign nationals do not have the same constitutional or statutory rights as citizens and therefore U.S. officials should be able to use this as a factor in admissibility determinations. In contrast to the other four nominees, Mr. Medine argued that use of country of origin as the sole purpose was ``inappropriate.´´"

Sen. Grassley elaborated. He also raised other objections to Medine. However, none of his criticism addressed with specificity any of Medine's views regarding government use of information or communications technologies.

Sen. Patrick Leahy (D-VT), the Chairman of the SJC, spoke in support of Medine. He said that there is a need "to protect personal privacy as new technologies emerge".

He added that "In the digital age, we must do more to protect our Nation from cyber attacks. But we must do so in a way that protects privacy and respects our fundamental freedoms."

Scott Harris Joins Wilkinson Barker Knauer

5/6. Scott Harris joined the Washington DC office of the law firm of Wilkinson Barker Knauer (WBK) as a managing partner. Bryan Tramont is the other managing partner.

Harris was previously General Counsel of Neustar. Before that, he was General Counsel of the Department of Energy (DOE). Before that, he was managing partner at the Washington DC law firm of Harris Wiltshire & Grannis, which is now Wiltshire & Grannis.

Before founding and managing that firm, he was Chief of the Federal Communications Commission's (FCC) International Bureau. From 1993 to 1996, he was Chief Counsel at the Department of Commerce's (DOC) Bureau of Export Administration (BXA), which is now the Bureau of Industry and Security (BIS).

WBK stated in a release that Blake will focus on "domestic and international telecommunications, technology, and energy law".

He is also currently Co-Chair of the FCC's Advisory Committee on the 2015 World Radio Conference. See, story titled "Harris and Cornell to Chair FCC's WRC-15 Advisory Committee" in TLJ Daily E-Mail Alert No. 2,421, August 25, 2012.

Senate Passes Internet Sales Tax Bill

5/6. The Senate amended and passed S 743 [LOC | WW], a bill to authorize states to compel out of state retailers to collect sales taxes on internet and other remote sales, by a vote of 69-27. See, Roll Call No. 113.

The Senate first approved an amendment by a vote of 70-24. See, Roll Call No. 112.

This bill, titled the "Marketplace Fairness Act", has not been passed by the House.

Rep. Steve Womack (R-AR) introduced the House version of this bill, HR 684 [LOC | WW], on February 14, 2013. Leading co-sponsors include Rep. Jackie Speier (D-CA), Rep. John Conyers (D-MI), and Rep. Peter Welch (D-VT).

See, full story.

More People and Appointments

5/6. President Obama nominated Colin Bruce to be a Judge of the U.S. District Court for the Central District of Illinois. See, White House news office release and release. He has been an Assistant U.S. Attorney for 24 years.

5/6. President Obama nominated Sara Lee Ellis to be a Judge of the U.S. District Court for the Northern District of Illinois. See, White House news office release and release. She works in the Chicago, Illinois office of the law firm of Schiff Hardin. Her law firm biography page states that she "has extensive experience in representing clients charged with federal white collar crimes from the target stage of the investigation through the appellate process".

5/6. President Obama nominated Andrea Wood to be a Judge of the U.S. District Court for the Northern District of Illinois. See, White House news office release and release. She is a trial attorney in the Chicago, Illinois office of the Securities and Exchange Commission (SEC). She previously worked for the law firm of Kirkland & Ellis. She clerked for Judge Diane Wood of the U.S. Court of Appeals (7thCir).

5/6. David Strickler and Jesse Feder were appointed Copyright Royalty Judges at the Library of Congress (LOC). Strickler taught basic economics courses at Brookdale Community College in New Jersey. Feder was an attorney employed by the Business Software Alliance (BSA). See, LOC release.

5/6. Matthew Levy joined the Computer and Communications Industry Association (CCIA) as Patent Counsel. The CCIA stated in a release that Levy has filed and prosecuted patents before the U.S. Patent & Trademark Office (USPTO), and defended clients in the U.S. District Courts "against patent trolls".

Go to News from May 1-5, 2013.