6/19. The Senate Commerce Committee held a lengthy meeting to mark up several bills on Thursday morning and afternoon, June 19. The Committee approved legislation that would undo some of the media ownership rules changes announced by the Federal Communications Commission (FCC) on June 2. It passed an anti spam bill. It passed a nanotech R&D bill. It passed a bill that reauthorizes the FTC and amends substantive law affecting FTC operations. Finally, it passed the Commercial Space Transportation Act.

The Committee amended and approved S 1046, the "Preservation of Localism, Program Diversity, and Competition in Television Broadcast Service Act of 2003", a media ownership bill. See, story titled "Senate Commerce Committee Passes Media Ownership Bill", in this issue.

The Committee also amended and approved S 877, the "Controlling the Assault of Non-Solicited Pormography and Marketing Act of 2003", or "CAN-SPAM Act". See, story titled "Senate Commerce Committee Passes Spam Bill", in this issue.

The Committee also approved S 189, the "21st Century Nanotechnology Research and Development Act". See, story titled "Senate Commerce Committee Approves Nanotech R&D Bill", in this issue.

The Committee also approved S 1234, the "Federal Trade Commission Reauthorization Act of 2003", sponsored by Sen. John McCain (R-AZ) and Sen. Gordon Smith (R-OR). There was considerable debate over a non technology related amendment offered by Sen. Frank Lautenberg (D-NJ), pertaining to FTC studies of cigarettes. That amendment failed on a straight party line vote. The bill contains both authorization for appropriations for the FTC, and several tech related substantive provisions. See, story titled "Sen. McCain Introduces FTC Reauthorization Bill" in TLJ Daily E-Mail Alert No. 682, June 17, 2003.

The Committee also approved S 1260, the "Commercial Space Transportation Act of 2003", sponsored by Sen. McCain and Sen. Sam Brownback (R-KS). This purpose of this bill is to authorize appropriations for the Office of the Associate Administrator for Commercial Space Transportation and otherwise promote the development of the commercial space transportation industry.

The Committee did not consider several bills that had been on the agenda for this meeting. The Committee did not take up S 1264, the FCC reauthorization bill, which also contains a large number of significant changes in substantive law. For example, it contains provisions pertaining to media ownership rules, e-rate fraud, FCC enforcement, private causes of actions against common carriers, lobbying by former FCC officials, and the effect of bankruptcy on spectrum auctions. See, story titled "Sen. McCain Introduces Telecom Bill" in TLJ Daily E-Mail Alert No. 681, June 16, 2003.

Nor did the Committee take up S 865, the "Commercial Spectrum Enhancement Act". The House has already passed its version of this bill, HR 1320. See also, TLJ story titled "House Subcommittee Holds Hearing On Commercial Spectrum Enhancement Act", March 25, 2003; story titled "House Subcommittee Approves Spectrum Relocation Fund Bill" in TLJ Daily E-Mail Alert No. 641, April 10, 2003; story titled "House Commerce Committee Passes Spectrum Relocation Bill" in TLJ Daily E-Mail Alert No. 653, May 1, 2003; and story titled "House Passes Commercial Spectrum Enhancement Act" in TLJ Daily E-Mail Alert No. 679, June 12, 2003.

6/19. The Senate Commerce Committee amended and passed S 1046, the "Preservation of Localism, Program Diversity, and Competition in Television Broadcast Service Act of 2003". The bill, as amended, would roll back some of the changes to the the Federal Communications Commission's (FCC) media ownership rules that the FCC announced at its June 2, 2003 meeting.

On June 2, the FCC announced rules changes that maintain, but relax, several FCC media ownership rules. The FCC raised the national TV ownership cap from 35% to 45%. The FCC eased both the local TV multiple ownership limits, and radio multiple ownership limits. The FCC also eased the limits on cross ownership of TV stations, radio stations, and daily newspapers. However, the FCC maintained the dual network ownership prohibition.

See, stories titled "FCC Announces Revisions to Media Ownership Rules" and "Reaction to the FCC's Media Ownership Announcement" in TLJ Daily E-Mail Alert No. 672, June 3, 2003.

The bill just adopted by the Senate Commerce Committee rolls back the FCC's announced changes pertaining to the national broadcast TV multiple ownership cap, and the cross ownership limits. It also changes the biennial review language of the Telecom Act of 1996 that the Circuit Court has relied upon in remanding FCC media ownership rules.

National Broadcast TV Multiple Ownership Cap. The FCC has long had a rule providing for a national broadcast television multiple ownership cap of 35%. On June 2, 2003, the FCC announced that it would raise this cap to 45%.

The FCC stated in a press release [10 pages in PDF] that the "FCC incrementally increased the 35% limit to a 45% limit on national ownership." The FCC elaborated that "A company can own TV stations reaching no more than a 45% share of U.S. TV households."

S 1046, which is sponsored by Sen. Ted Stevens (R-AK) (at right), Sen. Ernest Hollings (D-SC) and others, would establish by statute a national broadcast television multiple ownership cap of 35%. Specifically, the bill provides that the FCC "shall not permit any license for a commercial television broadcast station to be granted, transferred, or assigned to any party (including all parties under common control) if the grant, transfer, or assignment of such license would result in such party or any of its stockholders, partners, or members, officers, or directors, directly or indirectly, owning, operating or controlling, or having a cognizable interest in television stations which have an aggregate national audience reach exceeding 35 percent." (Parentheses in original.)

The Committee rejected attempts by Sen. John Breaux (D-LA) to change the method by which concentration would be measured. The FCC cap of 35% or 45% uses a measurement of aggregate national audience reach. Sen. Breaux argued that actually audience size, as measured by Nielson ratings, should be used. His proposal was to impose a cap defined as "actual prime time viewership, based on Nielson ratings for a 1-year period, exceeding 5%".

Cross Ownership Limits. The FCC has also long had rules limiting cross ownership. The FCC also announced on June 2 that it is relaxing those rules. The FCC announced that ""In markets with three or fewer TV stations, no cross-ownership is permitted among TV, radio and newspapers. A company may obtain a waiver of that ban if it can show that the television station does not serve the area served by the cross-owned property (i.e. the radio station or the newspaper)." (Parentheses in original.)

The FCC continued that for "markets with between 4 and 8 TV stations, combinations are limited to one of the following:
(A) A daily newspaper; one TV station; and up to half of the radio station limit for that market (i.e. if the radio limit in the market is 6, the company can only own 3) OR
(B) A daily newspaper; and up to the radio station limit for that market; (i.e. no TV stations) OR
(C) Two TV stations (if permissible under local TV ownership rule); up to the radio station limit for that market (i.e. no daily newspapers)." (Parentheses in original.)

Finally, the FCC stated that "In markets with nine or more TV stations, the FCC eliminated the newspaper-broadcast cross ownership ban and the television-radio cross-ownership ban."

The Commerce Committee adopted an amendment to S 1046, offered by Sen. Byron Dorgan (D-ND) (at right). It provides that "The cross-media limits adopted by the Federal Communications Commission on June 2, 2003 pursuant to its proceeding on broadcast media ownership rules ... is hereby declared null and void. The rules pertaining to broadcast-newspaper and radio-television cross-ownership in effect on June 1, 2003 are hereby reinstated as they were in effect on June 1, 2003, and shall be applied by the Commission retroactively to June 2, 2003.

The Committee also approved an amendment (technically a second degree amendment amending the Dorgan amendment) offered by Sen. Stevens providing an exemption to the cross ownership rules for small markets. It provides that in these markets the FCC may allow cross ownership that would otherwise be prohibited, if the state public utilities commission so recommends.

Biennial Reviews of Media Ownership Rules. The Committee also approved an amendment [2 pages in PDF] offered by Sen. McCain that removes the presumption in favor of deregulation currently contained the statute requiring the FCC to conduct biennial reviews of its media ownership rules.

The McCain amendment provides that "The Commission shall review its rules adopted pursuant to this section, and all of its ownership rules biennially as part of its regulatory reform review under section 11 of the Communications Act of 1934 and shall determine whether -- (A) any rule requires strengthening or broadening; (B) any rule requires limiting or narrowing; (C) any rule should be repealed; or (D) any rule should be retained."

The McCain amendment also provides that "The Commission shall change, repeal, or retain such rules pursuant to its review under paragraph (1) as it determines to be in the public interest." This does contain a requirement that such rules be "necessary".

Supporters of the bill argued that its serves the goals of localism, diversity and competition. Opponents argued that the nature of the media market has changed since the media ownership rules were written, with a proliferation of television stations and channels, and other sources of information, including those on the internet. The advent of the internet was barely discussed at the meeting. Sen. Olympia Snowe (R-ME) complained that "there is virtually no local news content on the internet".

While the bill has passed the Committee, it faces opposition in the full Senate. Also, while related bills have been introduced in the House, no action has been taken on those. Moreover, legislation of this nature faces considerable opposition in the House. In particular, the Chairman of the House Commerce Committee, Rep. Billy Tauzin (R-LA), and the Chairman of its Subcommittee on Telecommunications and the Internet, Rep. Fred Upton (R-MI), are supportive of the FCC on this issue.

The two FCC Commissioners who dissented from the FCC's June 2 report and order praised the Senate Commerce Committee, and stated that the FCC should stay its media ownership report and order.

Commissioner Jonathan Adelstein (at right) released a statement [PDF] in which he wrote that "Today's Congressional action is a dramatic rebuke of a bad decision. This is what happens when an agency ignores an outcry from Congress and the public to slow down and tread cautiously. The FCC ran right through the warning lights and into a guardrail. The Senate has taken the first steps -- the FCC shouldn't let these rules take effect until the public is heard through its elected representatives."

Commissioner Michael Copps, who is a former staff assistant to Sen. Hollings, wrote in a statement [PDF] that "In light of the very real possibility that Congress will reverse the Commission's vote to loosen its media ownership limits, I believe the FCC should defer to today's Congressional action and stay its decision until the people’s elected representatives complete their deliberations on media concentration."

Copps added that "This strong and bipartisan Committee action should flash the orange light of ``slow down and prepare to stop´´ for those media companies rushing to buy, sell or swap stations all across America."

6/19. The Senate Commerce Committee amended and passed S 877, the "Controlling the Assault of Non-Solicited Pormography and Marketing Act of 2003", or "CAN-SPAM Act". This Committee adopted an amendment in the nature of a substitute to the bill as originally introduced on April 10, 2003, by Sen. Conrad Burns (R-MT), Sen. Ron Wyden (D-OR), and others. Moreover, Sen. Wyden stated at the meeting, that the bill will be further revised, particularly regarding increasing penalties.

The bill as introduced, S 877 IS, creates civil bans on sending unsolicited commercial e-mail (UCE) with false header information, or with intentionally false or misleading content. It also requires UCE senders to include a return e-mail address, and ban sending further UCE to persons who have objected to receiving more UCE. It also bans the practice of sending UCE to lists of addresses that have been harvested from websites by automated means. The bill gives enforcement authority to the Federal Trade Commission (FTC), states, and internet access providers, but not individuals. The bill preempts state UCE laws, with exceptions.

The Committee approved an amendment in the nature of a substitute [36 pages in PDF] that makes numerous changes. It increases penalties for certain practices of spammers, including dictionary attacks, the establishment of numerous e-mail accounts to make spam more difficult to track and block, and the hijacking of other computers or computer networks to send or relay spam. It also increases damages available in suits brought by states and internet service providers.

The amendment provides that when a recipient asks to be removed from a sender’s mailing list, the sender also may not provide that recipient's e-mail address to a third party. The amendment also expands the ban on sending unsolicited commercial e-mail after a recipient has opted out to include both solicited and unsolicited marketing e-mail.

The amendment also modifies the federal preemption language to allow states to continue to impose and enforce laws against falsity and deception in spam.

Sen. Bill Nelson (D-FL) offered an amendment, which he later withdrew, that would have provided that certain acts shall be "considered a predicate offense for the purposes of applying the Racketeering Influenced and Corrupt Organization Act (RICO)", codified at 18 U.S.C. § 1961, et seq. He lacked the votes on the Committee for approval. However, he added that he may offer his amendment in the full Senate.

Sen. Wyden (at right) stated that Sen. Orrin Hatch (R-UT) and Sen. Patrick Leahy (D-VT), the Chairman and ranking Democrat on the Senate Judiciary Committee, will introduce a bill that amends criminal law regarding spam. Sen. Wyden added "this bill will continue to get tougher ... as we continue to work with the Judiciary Committee".

Sen. John McCain (R-AZ), the Chairman of the Commerce Committee, stated that "the penalties for this outrageous conduct have got to be tougher."

Senators Burns and Wyden also introduced anti-spam legislation in the 106th and 107th Congresses. Their bill in the last Congress, S 630 (107th), was approved by the Senate Commerce Committee on May 17, 2002. Then, the full Senate did not pass the bill. However, in the current Congress, there may be a higher level of support for spam legislation, evidenced by the increased number of spam bills that have been introduced in the House and Senate, the number of cosponsors (S 877 has 17 cosponsors, while S 630 had 12), and the frequency and vehemence of statements made in support of spam legislation.

See, story titled "Senators Burns and Wyden Re-Introduce Can Spam Bill" in TLJ Daily E-Mail Alert No. 643, April 14, 2003.

6/19. The Senate Commerce Committee passed S 189, the "21st Century Nanotechnology Research and Development Act", with little debate or discussion. The bill, which is sponsored by Sen. Ron Wyden (D-OR), Sen. George Allen (R-VA) and others, would authorize the appropriation of funds for nanotechnology research and development programs at a variety of federal agencies.

See, stories titled "Senate Commerce Committee Holds Hearing on Nanotechnology" in TLJ Daily E-Mail Alert No. 654, May 2, 2003; "House Science Committee Holds Hearing on Nanotechnology" in TLJ Daily E-Mail Alert No. 641, April 10, 2003; and "Representatives Introduce Bill To Authorize Nanotech R&D Funding" in TLJ Daily E-Mail Alert No. 606, February 18, 2003.

One of the aspects of the bill that has been debated is whether the administration should take guidance from a panel of nanotechnology experts, or from a general panel of science and technology experts. Senate Wyden stated in a release that "The bill also requires a panel of experts to advise the President on nanotechnology issues; Wyden has strongly advocated the creation of a panel made up solely of nanotechnology experts, although the existing President’s Commission of Advisors on Science and Technology, or P-CAST, may be used. A National Nanotechnology Coordination Office created in the bill will provide administrative and technical support for the President’s nanotechnology advisors and the research program in general."

The House will not meet.

The House will meet at 12:30 PM.

The Supreme Court will return from a one week recess.

8:45 AM - 2:35 PM. The American Antitrust Institute will host a Fourth Annual Conference titled "Antitrust and Access". The price to attend is $400. At 9:15 - 10:45 AM there will be a panel titled "Transparency: the public's access to the federal antitrust process" The speakers will be Warren Grimes (Southwestern University School of Law), Peter Carstensen (University of Wisconsin), John Nannes (Skadden Arps), and Robert Pitofsky (Georgetown University). At 11:00 AM - 12:30 PM there will be a panel titled "Network Access: When should antitrust mandate access to a network?" The speakers will be Diana Moss (AAI), Michael Dworkin (Vermont Public Service Board), Harry First (New York University), Simon Wilkie (Chief Economist, Federal Communications Commission).Location: National Press Club.

10:00 AM. The Senate Judiciary Committee will hold a hearing on several pending judicial and other nominations, including Allyson Duncan (to be a Judge of the U.S. Court of Appeals for the 4th Circuit), Samuel Der-Yeghiayan (Northern District of Illinois), Louise Flanagan (Eastern District of North Carolina), Lonny Suko (Eastern District of Washington), Earl Yeakel (Western District of Texas), and Christopher Wray (Assistant Attorney General). Press contact: Margarita Tapia at 202 224-5225. Location: Room 226, Dirksen Building.

12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee will host a brown bag lunch. The speaker will be Kyle Dixon, Deputy Bureau Chief of the Federal Communications Commission's (FCC) Media Bureau, and Special Counsel to the Chairman for Broadband. RSVP to Wendy Parish at wendy@fcba.org. Location: National Cable & Telecommunications Association (NCTA), 1724 Massachusetts Ave., NW, 2nd Floor Conference Room.

2:30 PM. The Senate Judiciary Committee's Antitrust, Competition Policy and Consumer Rights Subcommittee will hold a hearings to examine how to preserve and protect media competition in the marketplace. Press contact: Margarita Tapia at 202 224-5225. Location: Room 226, Dirksen Building.

2:30 PM. The Senate Foreign Relations Committee's European Affairs Subcommittee will hold a hearing to examine "U.S. relations with respect to a changing Europe, focusing on differing views on technology issues". Location: Room 419, Dirksen Building.

The 21st Century Intellectual Property Coalition will meet. For information, contact Dana Colarulli at dana@ipo.org.

9:30 AM. The Senate Government Affairs Committee will hold a hearing on the nomination of Joshua Bolton to be Director of the Office of Management and Budget (OMB). Location: Room 342, Dirksen Building.

10:15 AM. The House International Relations Committee's Subcommittee on East Asia and the Pacific will hold a hearing. The witness will be
Ralph Ives, Assistant U.S. Trade Represenative for Asia-Pacific and APEC Affairs. Location: Room 2172, Rayburn Building.

12:00 NOON - 1:30 PM. The Congressional Internet Caucus Advisory Committee and the US Asia Policy Network will host a panel discussion titled "The Internet in Asia: Is the US Falling Behind?" RSVP to rsvp@netcaucus.org or 202 638-4370. Location: Room 216, Hart Building.

The Federal Communications Bar Association (FCBA) will host a luncheon. Federal Communications Commission (FCC) Chairman Michael Powell will speak.

2:00 PM. The Senate Judiciary Committee will hold a hearing on the nominations of Allyson Duncan (to be a Judge of the U.S. Court of Appeals for the 4th Circuit), and Louise Flanagan (Eastern District of North Carolina). Press contact: Margarita Tapia at 202 224-5225. Location: Room 226, Dirksen Building.

DELAYED. The Federal Communications Commission (FCC) will begin Auction 53, regarding licenses in the Multichannel Video Distribution and Data Service (MVDDS). See, notice in Federal Register, May 27, 2003, Vol. 68, No. 101, at pages 28825 - 28826.

Last scheduled conference of the Supreme Court in the October 2002 term. See, court calendar [PDF].

9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

9:00 AM. The Progress and Freedom Foundation (PFF) will host a conference titled "Net Neutrality: Consumer Protection or Commercial Ploy?". At 9:00 AM, Nancy Victory, Director of the National Telecommunications and Information Administration (NTIA), will give the opening keynote address. At 9:30 AM, there will be a panel titled "Industry Perspectives on the Need for Regulating Broadband Networks". The participants will include Paul Misener (Amazon), Robert Sachs (National Cable & Telecommunications Association), Tom Tauke (Verizon), and Jeffrey Campbell (Cisco Systems). At 10:45 AM, there will be a panel titled "Economic and Public Policy Perspectives on the Need for Regulating Broadband Networks". The participants will include Bruce Owen (Stanford Institute of Economic Policy Research), Joseph Farrell (University of California at Berkeley), and David Scheffman (Bureau of Economics, Federal Trade Commission). See, PFF notice. Location: J.W. Marriott Hotel.

Day long meeting of the Federal Communications Commission's (FCC) Consumer Advisory Committee.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice of proposed changes to its rules of practice to implement the inter partes reexamination provisions, and other patent related provisions, of HR 2215 (107th Congress), the 21st Century Department of Justice Appropriations Authorization Act, which President Bush signed on November 2, 2002. For more information, contact Kenneth Schor at 703 308-6710. See, Federal Register, April 28, 2003, Vol. 68, No. 81, at Pages 22343 - 22353.