1/28. The House schedule for January 28, 2009, includes consideration of HR 1 [LOC | WW], a huge spending bill, titled the "American Recovery and Reinvestment Act of 2009". This bill contains numerous technology related provisions.

The House Rules Committee (HRC) meet on January 27, and adopted a rule for consideration of this bill. This rule contains hyperlinks to amendments that are in order.

Appropriations. Division A of this bill provides appropriations. Division B covers other topics. Division A provides, among other things, appropriations for wireless deployment grants, broadband deployment grants, broadband mapping, DTV transition converter box coupons, NIST research, and NSF research.

This bill provides the National Telecommunications and Information Administration (NTIA) $1 Billion for "Wireless Deployment Grants" and $1.825 Billion for "Broadband Deployment Grants". (Division B contains sections that create these grant programs.)

This bill provides the NTIA an additional $350 Million "to establish the State Broadband Data and Development Grant Program, as authorized by Public Law 110-385, for the development and implementation of statewide initiatives to identify and track the availability and adoption of broadband services within each State, and to develop and maintain a nationwide broadband inventory map, as authorized by section 6001 of division B of this Act."

The bill provides the NTIA with an additional $650 Million in DTV transition funding. The bill provides that "That these funds shall be available for coupons and related activities, including but not limited to education, consumer support and outreach, as deemed appropriate and necessary to ensure a timely conversion of analog to digital television."

This bill provides the National Institute of Standards and Technology (NIST) an additional $100 Million for "Scientific and Technical Research and Services".

This bill provides the National Science Foundation (NSF) an additional $2.5 Billion for "Research and Related Activities".

This bill provides the Department of Justice (DOJ) an additional $3 Billion for "State and Local Law Enforcement Assistance".

E-Verify. Section 1114, in Division A of the bill, provides  that "None of the funds made available in this Act may be used to enter into a contract with an entity that does not participate in the E-verify program described in section 401(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note)."

Health Sector IT. Section 9202, in Division A of the bill, addresses appropriations related to the "electronic exchange and use of health information for each individual in the United States".

Division B of the bill addresses numerous topics other than appropriations, including health sector IT, NTIA broadband mapping, NTIA broadband subsidies, a FCC national broadband plan, and the research and development (R&D) tax credit.

Division B, Title IV, is the "Health Information Technology for Economic and Clinical Health Act" or "HITECH Act".

Broadband Provisions. Division B, Title VI, pertains to broadband.

Section 6001 pertains to broadband mapping by the NTIA.

Section 6002 establishes a program at the NTIA for wireless and broadband grants for "non-recurring costs associated with the deployment of broadband infrastructure".

Section 6003 requires the FCC to write and submit to the Congress within one year a national broadband plan.

R&D Tax Credit. Division B, Title I, contains numerous changes to tax law.

Section 1631 pertains to the R&D tax credit. It does not make it permanent, or extend it beyond 2009. However, it but does amend 26 U.S.C. S 41(h) to add an "energy tax credit" provision.

For decades the Congress has not enacted a permanent R&D tax credit. Rather, it has enacted a series of short term credits, often after the expiration of the previous credit provision. Last year the Congress passed, and former President Bush signed, on October 3, 2008, HR 1424 (110th Congress). It is now Public Law 110-343. The previous credit had expired on December 31, 2007. That bill extended the credit from January 1, 2008, through December 31, 2009.

The expiration date is set in subsection 41(h). The bill under consideration would redesignate it as subsection 41(i), and insert a new subsection creating an "energy tax credit".

1/26. The Senate amended and passed S 328 [LOC | WW], the "DTV Delay Act", by unanimous consent, on January 26, 2009. The House debated this bill on January 27, and is scheduled to vote on the bill under suspension of the rules on Wednesday, January 28, 2009.

If passed by the Congress, President Obama will sign it. His transition office proposed the delay. See, story titled "Obama Transition Suggests Legislative Extensive of February 17 DTV Transition" in TLJ Daily E-Mail Alert No. 1,881, January 12, 2009.

This bill would extend the transition date from February 18, 2009, to June 13, 2009.

It also provides that the Federal Communications Commission (FCC) "shall extend the terms of the licenses for the recovered spectrum, including the license period and construction requirements associated with those licenses, for a 116-day period."

It also provides that the National Telecommunications and Information Administration (NTIA) "may issue to a household, upon request by the household, one replacement coupon for each coupon that was issued to such household and that expired without being redeemed".

The bill also sets the circumstances under which broadcasters may transition to DTV prior to the deadline.

It provides that "Nothing in this Act is intended to prevent a licensee of a television broadcast station from terminating the broadcasting of such station's analog television signal (and continuing to broadcast exclusively in the digital television service) prior to the date established by law under section 3002(b) of the Digital Television Transition and Public Safety Act of 2005 for termination of all licenses for full-power television stations in the analog television service (as amended by section 2 of this Act) so long as such prior termination is conducted in accordance with the Federal Communications Commission's requirements in effect on the date of enactment of this Act, including the flexible procedures established in the Matter of Third Periodic Review of the Commission's Rules and Policies Affecting the Conversion to Digital Television (FCC 07-228, MB Docket No. 07-91, released December 31, 2007)." (Parentheses in original.)

This bill also requires the FCC and NTIA to adopt implementing rules within 30 days of enactment.

This bill also amends 47 U.S.C. § 309(j)(11) by striking "2011" and inserting "2012". Section 309 pertains to FCC licenses. Subsection 309(j) authorizes the FCC to award licenses by competitive bidding. Subsection 309(j)(11) sets the termination date of this authority.

Sen. Jay Rockefeller (D-WV), the Chairman of the Senate Commerce Committee (SCC), and sponsor of this bill, stated in the Senate that "We can do the DTV transition right or we can do it wrong. Doing it right would mean that as many as 21 million households across this country do not lose access to news, information and emergency alerts. Doing it right would mean that every consumer who relies on over the-air television is aware of the steps they need to take to ensure continued reception and receive the assistance they need to prepare for the transition in their home. And doing it right means that no one across this land wakes up on February 18 to find that their television set has gone dark."

Sen. Rockefeller said that "we are not poised to do this transition right".

He also said that "the outgoing administration grossly mismanaged the digital television transition. The coupon program that was designed to help consumers defray the cost of converter boxes to ensure the continued functioning of their analog television sets has a waiting list of over 2 million. This number will multiply to millions more in the weeks ahead."

Sen. Rockefeller did not add that it was the Congress that enacted legislation and appropriated funds for the DTV converter box program. The Congress is now considering a separate bill, HR 1 [LOC | WW], that will provide an additional $650 Million for this program.

Sen. Kay Hutchison (R-TX), the ranking Republican on the SCC, stated in a release that "Senator Rockefeller's personal commitment to me to not seek another delay provides needed certainty to bring this transition to a conclusion."

"I had serious concerns about shifting the digital television transition without a sound plan to inform consumers or address the converter box coupon shortage", said Sen. Hutchison. "I am pleased that Chairman Rockefeller worked with me to address many of the concerns with the early proposals. These changes will help consumers whose coupons have expired, and allow TV stations that are prepared, and ready, to move forward without the requirement of simulcasting."

Rep. Henry Waxman (D-CA), the Chairman of the House Commerce Committee (HCC), stated in a release that "I am pleased that the Senate has acted to delay the deadline, which is our only hope of mitigating the negative impact on millions of consumers."

The HCC scheduled a mark up of this legislation last week, but cancelled it. Rep. Waxman stated in a release at that time that "The transition to digital television is not going well. There is not enough money for the converter box coupon program and millions of Americans could experience serious problems."

Dennis Wharton of the National Association of Broadcasters (NAB) stated in a release that the NAB supports the Senate approved bill.

1/27. The House debated S 328 [LOC | WW], the "DTV Delay Act" on January 27, 2009. This bill would extend the transition date from February 18, 2009, to June 13, 2009.

The House is scheduled to vote on the bill under suspension of the rules on Wednesday, January 28, 2009. Under this procedure no amendments are permitted, and a two-thirds majority is required for passage.

During debate, Democrats spoke in favor of the bill, and Republicans spoke in opposition.

Rep. Rick Boucher (D-VA), the Chairman of the House Commerce Committee's (HCC) Subcommittee on Telecommunications and the Internet, stated that "I ... regret the disadvantage of this delay for the commercial wireless service providers who bought their portion of the analog spectrum for approximately $20 billion. But ... AT&T and Verizon, the companies that purchased most of the spectrum and contributed most of that $20 billion, have endorsed the legislation that is pending tonight and have said that this delay is appropriate."

He also stated that "Another delay in the digital transition beyond the one contained in this bill tonight will simply not occur. I will strongly oppose any effort to delay the transition beyond June 12, and I strongly discourage anyone from requesting that another delay be provided. This delay is a one-time occurrence taking place for predictable but extraordinary reasons, and no additional delay will be considered in our committee."

Rep. Joe Barton (R-TX), the ranking Republican on the HCC, stated that "we know that there are some problems in the transition", and until "several weeks ago" Republicans and Democrats were working together on providing another $250 Million for the coupon program.

But, said Rep. Barton, "Then the Obama transition team, in their infinite wisdom, decided that they wanted a delay, and as far as I can tell, and I could be corrected on this, they didn't consult with any of our legislative experts on either side of the aisle in either body, the House or the Senate. They just sent up a letter or a message to the majority side that they wanted this delay, and those discussions that we had on a bipartisan basis broke down."

"We could do nothing worse than to delay this date", said Rep. Barton.

He argued that the number of unready households -- those without cable or satellite -- is about 800,000. He added that consumers who are not yet ready can simply buy a converter box, rather than rely on a government subsidy.

And, he said that "I guarantee you no matter when you set the date, February 17, June 12, July the 4th, Valentine's Day, there are going to be some people that aren't ready."

Rep. Lee Terry (R-NE) stated that "this bill will only confuse customers by changing the date, cost more money and hurt public safety".

Rep. Cliff Stearns (R-FL), Rep. John Shimkus (R-IL), Rep. Phil Gingrey (R-GA), Rep. Steve Scalise (R-LA) also spoke in opposition to the bill. Rep. Bob Goodlatte (R-VA) submitted a statement for the record in opposition.

Rep. Eliot Engel (D-NY), Rep. Gene Green (D-TX), Rep. Henry Waxman (D-CA), Rep. John Dingell (D-MI), and Rep. Sheila Lee (D-TX) all spoke in favor of the bill.

This issue contains the following items:
 • House to Consider Spending Bill
 • Senate Approves DTV Delay Act
 • House Debates DTV Delay Act

The House will meet at 10:00 AM for legislative business. The House is scheduled to consider HR 1 [LOC | WW], a huge spending bill titled "American Recovery and Reinvestment Act of 2009", subject to a rule. The House is also scheduled to vote on S 328 [LOC | WW], the "DTV Delay Act", under suspension of the rules. See, Rep. Hoyer's schedule for the week January 26, and schedule for January 28.

The Senate will meet at 10:00 AM. It will resume consideration of HR 2 [LOC | WW], the "Children's Health Insurance Program Reauthorization Act of 2009".

POSTPONED. 9:30 AM. The Senate Foreign Relations Committee will hold its organizational meeting for the 111th Congress. It will also consider the nominations of James Steinberg to be Deputy Secretary of State, and Jacob Lew to be Deputy Secretary of State for Management and Resources. See, notice. Location: Room 419, Dirksen Building.

10:00 AM. The House Foreign Affairs Committee will hold its organizational meeting for the 111th Congress. Location: Room 2172, Rayburn Building.

12:00 NOON -1:30 PM. The DC Bar Association will host an event titled "Jacobsen v. Katzer and Open Source: Little Trains, Big Consequences". The speakers will be Elaine Laflamme (Akin Gump), Barbara Berschler, and Victoria Hall. The price to attend ranges from $15 to $35. See, notice. Location: DC Bar Conference Center, level B-1, 1250 H St., NW.

12:15 - 2:00 PM. The DC Bar Association will host an event titled "The Divergent Antitrust Enforcement Policies of the USDOJ, FTC, and State Enforcers". The speakers will include Meredyth Andrus (Bureau of Competition, Federal Trade Commission), Don Resnikoff (Finkelstein Thompson), Milton Marquis (Dickstein Shapiro), and Stephen Houck (Menaker & Herrmann). The price to attend ranges from $10 to $35. See, notice. Location: Mayer Brown, 1909 K St., NW.

12:30 - 2:00 PM. The Federal Communications Bar Association's (FCBA) Diversity and Young Lawyers Committee will host a brown bag lunch titled "Work/Life Balance". RSVP to Jessica Gonzalez at jg433 at law dot georgetown dot edu or Elizabeth Goldin at EGoldin at wileyrein dot com. Location: Georgetown University Law Center, McDonough Building, Room 164, 600 New Jersey Ave., NW.

1:00 PM. The House Small Business Committee will hold its organizational meeting for the 111th Congress. Location: Room 2360, Rayburn Building.

3:00 - 4:00 PM. The New America Foundation (NAF) will host a panel discussion titled "Broadband Transparency: Network Research, Empowered Users, and Sound Policy". The speakers will be Vint Cerf (Google), Sascha Meinrath (NAF), Larry Peterson (Princeton Univ.) and Ed Felton (Princeton Univ.). See, notice. Location: NAF, 7th floor, 1630 Connecticut Ave., NW.

The House is not scheduled to meet. See, Rep. Hoyer's schedule for the week January 26.

9:30 AM. The Senate Homeland Security and Government Affairs Committee will hold its organizational meeting for the 111th Congress. Location: Room 342, Dirksen Building.

Day one of a three day meeting of House Republicans titled "Republican Issues Conference".

4:00 - 5:15 PM. The American Enterprise Institute will host a discussion of the book [Amazon] titled "The Law Market". It addresses choice of law and jurisdiction. The speakers will be Erin O'Hara (co-author, Vanderbilt University law school), Larry Ribstein (co-author, University of Illinois law school), and Max Stearns (University of Maryland law school). See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

Deadline to submit comments to the Copyright Royalty Judges in response to their notice of proposed changes to their rules regarding filing notice of use and the delivery of records of use of sound recordings under two statutory licenses of the Copyright Act. See, notice in the Federal Register, December 30, 2008, Vol. 73, No. 250, at Pages 79727-79734.

The House is not scheduled to meet. See, Rep. Hoyer's schedule for the week January 26.

Day two of a three day meeting of House Republicans titled "Republican Issues Conference".

9:00 AM - 4:00 PM. The Federal Communications Commission's (FCC) Consumer Advisory Committee will meet. See, release [PDF]. Location: FCC, Commission Meeting Room, Room TW-C305, 445 12th St., SW.

12:00 NOON - 2:00 PM. The Technology Policy Institute (TPI) will host a panel discussion titled "Broadband, Economic Growth, and the Financial Crisis: Informing the Stimulus Package". The speakers will be Scott Wallsten (TPI), James Assey (National Cable & Telecommunications Association), Robert Crandall (Brookings Institution), Chris King (Stifel Nicolaus Telecom Equity Research), and Shane Greenstein (Northwestern University business school). Lunch will be served. See, registration form. For more information, or to register, contact contact Ashley Creel at 202-828-4405 or events at techpolicyinstitute dot org. Location: Room B369, Rayburn Building, Capitol Hill.

TIME? The Judicial Conference of the U.S.'s Advisory Committee on Appellate Rules will hold a meeting to consider changes to the Federal Rules of Appellate Procedure (FRAP). One of the items on the agenda is Rule 29, regarding amicus curiae briefs. There is a proposal [PDF] to require that an amicus brief disclose (1) whether counsel for a party authored the brief in whole or in part, (2) whether a party or a party's counsel contributed money with the intention of funding the preparation or submission of the brief, and (3) every person, other than the amicus, its members, and its counsel, who funded the preparation of the brief. See, notice in the Federal Register, July 30, 2008, Vol. 73, No. 147, at Pages 44280-44281. Location?

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft of SP 800-120 [50 pages in PDF] titled "Recommendation for EAP Methods Used in Wireless Network Access Authentication".

Day three of a three day meeting of House Republicans titled "Republican Issues Conference".

Deadline to submit comments to the National Aeronautics and Space Administration (NASA) regarding its proposed rules changes regarding information technology security. See, notice in the Federal Register, December 2, 2008, Vol. 73, No. 232, at Pages 73201-73202.

Deadline to submit to the Federal Communications Commission (FCC) replies to oppositions to the petition for reconsideration [PDF] filed on December 1, 2008 by Cohen Dippell & Everist regarding the FCC's Second Report and Order and Second Further Notice of Proposed Rulemaking [PDF] in its proceeding titled "In the Matter of An Inquiry Into the Commission's Policies and Rules Regarding AM Radio Service Directional Antenna Performance Verification". The FCC adopted this item on September 24, 2008, and released the text on September 26, 2008. It is FCC 08-228 in MM Docket No. 93-177. See, notice in the Federal Register, January 8, 2009, Vol. 74, No. 5, at Page 810.

No events listed.

12:00 NOON. The Cato Institute will host a panel discussion on the book [Amazon] titled "In Search of Jefferson's Moose: Notes on the State of Cyberspace". The speakers will be David Post (author), Jim Harper (Cato), Jeffrey Rosen (George Washington University law school), and Clive Crook (Financial Times). The Cato Institute will webcast this event. Lunch will be served after the program. See notice. Location: Cato, 1000 Massachusetts Ave., NW.

1/13. The National Institute of Standards and Technology's (NIST) Computer Security Division released its Draft Special Publication 800-122 [58 pages in PDF] titled "Guide to Protecting the Confidentiality of Personally Identifiable Information (PII)". The deadline to submit comments is March 13, 2009.

1/13. The National Institute of Standards and Technology's (NIST) Computer Security Division released its Draft Interagency Report 7497 [42 pages in PDF] titled "Security Architecture Design Process for Health Information Exchanges (HIEs)". The deadline to submit comments is March 13, 2009.

Tech Law Journal publishes a free access web site and a subscription e-mail alert. The basic rate for a subscription to the TLJ Daily E-Mail Alert is $250 per year for a single recipient. There are discounts for subscribers with multiple recipients.

Free one month trial subscriptions are available. Also, free subscriptions are available for journalists, federal elected officials, and employees of the Congress, courts, and executive branch. The TLJ web site is free access. However, copies of the TLJ Daily E-Mail Alert are not published in the web site until two months after writing.

For information about subscriptions, see subscription information page.

Tech Law Journal now accepts credit card payments. See, TLJ credit card payments page.

TLJ is published by David Carney
Contact: 202-364-8882.
carney at techlawjournal dot com
P.O. Box 4851, Washington DC, 20008.

Privacy Policy
Notices & Disclaimers
Copyright 1998-2008 David Carney. All rights reserved.