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January 28, 2009, Alert No. 1,888.
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House Rejects DTV Delay Act

1/28. The House rejected S 328 [LOC | WW], the "DTV Delay Act", by a vote of 258-168. Democrats voted 236-13. Republicans voted 22-155. See, Roll Call No. 41.

This bill was considered under suspension of the rules, thereby requiring a two thirds majority for passage.

Rep. Henry WaxmanRep. Henry Waxman (D-CA), Chairman of the House Commerce Committee (HCC), stated in a release that "I am very disappointed the House Republicans blocked the DTV extension today in the House".

He added that "Their vote has wasted valuable time and will cause needless confusion for consumers. A clear majority in Congress supports postponing the transition and providing assistance to the millions of households that are unprepared. I am working with the Obama Administration and congressional leadership to explore all available options."

Gary Shapiro, head of the Consumer Electronics Association (CEA), stated in a release that "Congress will no doubt further deliberate the wisdom of extending the DTV transition date, and we urge full consideration of the implications for consumers of such delay. Not only does a delay go to Americans ability to believe in a promise by government, but manufacturers and retailers of converter boxes made and bought boxes based on the February 17 date and no one knows how a delay will affect the supply of boxes."

Shapiro added that "A delay is costly, affects broadcasters and affects emergency responders. In this time of massive unemployment, we are hearing from Americans concerned that the government may spend more money to delay the transition when almost every American is aware of and could plan for the transition. We will support whatever Congress does, and we applaud the brave legislators who have been willing to speak on this issue and argue that a simple legislative fix would help address the existing problems."

McDowell and Copps Address FCC Reform

1/28. Federal Communications Commission (FCC) Commissioner Robert McDowell sent a letter [3 pages in PDF] on January 27, 2009, to FCC acting Chairman Michael Copps proposing reforms of FCC processes.

Robert McDowellMcDowell (at left) He proposed a "thorough operational, financial and ethics audit" of the FCC. He proposed updating and releasing the FCC's strategic plan. He proposed improving "external communications", such as by providing earlier notice of meeting dates. He proposed improving the FCC's "internal flow of information".

He also urged the FCC to update is IT systems and web site.

Acting Chairman Copps responded in a letter [2 pages in PDF] dated January 28, 2009.

Copps wrote that "I am already at work to improve our internal communications, to facilitate the flow of information, to create more transparency and predictability in our processes, and to make sure that all of us are communicating with one another as a single entity rather than as disparate and disconnected departments."

But, Copps added that as a temporary Chairman he is not "comfortable" with undertaking "comprehensive organizational restructuring".

McDowell Criticizes Proposals to Renew Fairness or Censorship Doctrine

1/28. Federal Communications Commission (FCC) Commissioner Robert McDowell gave a speech in Washington DC to the Media Institute. He discussed briefly government efforts to plan a transition to digital television, and then focused on government mandates regarding the broadcasting of contrasting viewpoints.

These regulatory efforts are sometimes referred to by proponents as the "Fairness Doctrine", and by opponents as the "Censorship Doctrine".

McDowell said that "If the Doctrine were to return in some form or another, does anyone think that the Commission is any better equipped today than it was in 1973 to untangle the knotty problems of enforcement by assuming the role of editor-at-large for the entire country?"

He said that "Even if the FCC had a large number of people to devote to such reviews, which it doesn’t, and even if the prospect of government regulators scrutinizing individual editorial choices were not so constitutionally unsavory, which it is, in practical terms enforcement of the Doctrine presents intellectually thorny challenges."

He elaborated that "Once Doctrine complaints were filed, unelected bureaucrats would be put in the position of determining: (1) what the opposing view, or views, might be; (2) which of several potential speakers should get a chance to voice them; and (3) when and how such opposing views should be presented."

McDowell also condemned proposals to expand such content regulation to cable, satellite or the internet.

Copyright Office Amends Copyright Royalty Judges' § 115 Determination

1/26. The Copyright Office (CO) published a notice in the Federal Register that announces, describes, and attaches its decision titled "Review of Copyright Royalty Judges' Determination".

On November 24, 2008, the Copyright Royalty Judges (CRJ) issued their final determination setting reasonable rates and terms of royalty payments for the
making and distribution of phonorecords of musical works in accordance
with the 17 U.S.C. § 115.

This notice states that the Register of Copyright concludes that "the Copyright Royalty Judges erroneously did not refer two novel questions of law as required under the statute; that they were in error in their conclusions regarding both their and the Register's authority to review regulations submitted to them under an agreement by the participants; and that their conclusion that they could not review the agreement submitted by the participants led to the inclusion of regulations that constitute erroneous resolution by the CRJs of material questions of substantive law under title 17."

The just released decision "corrects errors". It will be made part of the record of the CRJ proceeding.

See, Federal Register, January 26, 2009, Vol. 74, No. 15, at Pages 4537-4543.

People and Appointments

1/29. The Federal Communications Commission (FCC) released an order [PDF] naming Michael Copps Defense Commissioner. The order was adopted on January 28, 2009.

1/28. The Federal Communications Commission (FCC) issued a release [PDF] that announces that acting Chairman Michael Copps named John Giusti acting Chief of the FCC's International Bureau.

1/28. The Federal Communications Commission (FCC) issued a release [PDF] that announces that acting Chairman Michael Copps named David Furth acting Chief of the FCC's Public Safety and Homeland Security Bureau, effective January 30, 2009. He replaces Derek Poarch.

1/26. Michael Copps, acting Chairman of the Federal Communications Commission (FCC) named Rick Chessen acting Chief of Staff and Scott Deutchman his acting Senior Legal Advisor. In addition, Paul Murray, a Legal Advisor to the Chief of the FCC's Wireless Telecommunications Bureau, will be Copp's interim Legal Advisor for wireless and international issues. Finally, Bruce Gottlieb has taken a temporary leave of absence. See, FCC release.

1/27. Mary Shapiro took the oath of office as Chairman of the Securities and Exchange Commission (SEC). See, SEC release.

1/27. The Senate confirmed Daniel Tarullo to be a member of the Board of Governors of the Federal Reserve System by a vote of 96-1. See, Roll Call No. 17.

1/26. The Senate confirmed Timothy Geithner to be Secretary of the Treasury by a vote of 60-34. See, Roll Call No. 15.

1/26. The CTIA named Andrea Williams Vice President of Law. She has worked at the CTIA since 1994. See, CTIA release.

1/23. President Obama announced his intent to nominate Jane Lute to be Deputy Secretary at the Department of Homeland Security (DHS). Secretary of Homeland Security Janet Napolitano named Noah Kroloff to be her Chief of Staff for Policy to the Secretary, and Jan Lesher to be her Chief of Staff for Operations to the Secretary. See, DHS release.

1/22. President Obama named Michael Copps acting Chairman of the Federal Communications Commission (FCC). See, statement by Copps, statement by Commissioner Robert McDowell, statement by Commissioner Jonathan Adelstein,

1/16. Secretary of Commerce Carlos Guitierrez announced the following two year appointments to the Department of Commerce's (DOC) Commerce Spectrum Advisory Committee: David Borth (Motorola), Martin Cooper (ArrayComm, Inc.), Mark Crosby (Enterprise Wireless Alliance), Brian Fontes (National Emergency Number Association), Harold Furchtgott-Roth (Furchtgott-Roth Enterprises), Robert Gurss (Association of Public-Safety Communications Officials), Dale Hatfield, John Hoadley (Nortel), Kevin Kahn (Intel), James Andrew Lewis (Center for Strategic and International Studies), Mark McHenry (Shared Spectrum Company), Darrin Mylet (Cantor Fitzgerald), Janice Obuchowski (Freedom Technologies), Robert Pepper (Cisco Systems), Neville Ray (T-Mobile USA), Richard Reaser, (Raytheon Space and Airborne Systems), Gerard Salemme (Clearwire Corporation), Bryan Tramont (Wilkinson Barker Knauer), and Jennifer Warren (Lockheed Martin Corporation). See, DOC release [PDF].

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In This Issue

This issue contains the following items:
 • House Rejects DTV Delay Act
 • McDowell and Copps Address FCC Reform
 • McDowell Criticizes Proposals to Renew Fairness or Censorship Doctrine
 • Copyright Office Amends Copyright Royalty Judges' § 115 Determination

Washington Tech Calendar
New items are highlighted in red.
Friday, January 30

The House will not meet. The House will next meet at 2:00 PM on February 2, 2009.

The Senate will meet at 9:30 AM for morning business.

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.

9:00 AM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "Stimulus and Investment Effects of Temporary Reduced Taxes on Repatriation". The speakers will be Robert Atkinson (ITIF), Robert Shapiro (Sonecon), and Gary Hufbauer (Peterson Institute for International Economics). See, notice. Location: Room SC-4, Capitol Building.

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".

Saturday, January 31

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

Monday, February 2

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.

Tuesday, February 3

No events listed.

Wednesday, February 4

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.

2:00 - 3:00 PM. The Department of Homeland Security's (DHS) Office for
Interoperability and Compatibility's (OIC) Project 25's (P25) Compliance Assessment Program's (CAP) Governing Board (GB) will meet by conference call. That is, the DHS seeks public comments over the phone regarding standards that allow public safety radios and other components to interoperate. See, notice in the Federal Register, January 28, 2009, Vol. 74, No. 17, at Page 4965.

Thursday, February 5

The House will not meet.

Day one of a three day meeting of House Democrats titled "Democratic Issues Conference".

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing on the nomination of David Ogden to be Deputy Attorney General at the Department of Justice (DOJ). The SJC will webcast this hearing. See, notice. Location: Room 226, Dirksen Building.

2:00 PM. The Federal Communications Commission (FCC) will hold an event titled "Open Meeting". See, notice.

5:00 PM. Deadline to submit requests to participate in the U.S. Patent and Trademark Office's (USPTO) roundtable on February 12, 2009, regarding whether or not to adopt some form of deferred examination for patent applications. See, notice in the Federal Register, January 28, 2009, Vol. 74, No. 17, at Pages 4946-4947.

Friday, February 6

The House will not meet.

Day two of a three day meeting of House Democrats titled "Democratic Issues Conference".

More News

1/29. The Federal Communications Commission (FCC) announced in a release that it will hold an event titled "Open Meeting" on Thursday, February 5, 2009, at 2:00 PM. The agenda includes only "presentations and discussion" of government efforts to plan a transition to digital television.

1/28. The House passed HR 1 [LOC | WW], a huge spending bill, by a vote of 244-188. See, Roll Call No. 46. 177 Republicans and 11 mostly blue dog Democrats voted against. This bill, which is titled the "American Recovery and Reinvestment Act of 2009", contains numerous technology related provisions. See, story titled "House to Consider Spending Bill" in TLJ Daily E-Mail Alert No. 1,887, January 27, 2009.

1/28. The Department of Justice's (DOJ) Antitrust Division filed sealed pleadings with the U.S. District Court (DC) in US v. Microsemi. See, pleading titled "Motion to Seal Plaintiff's Memorandum in Opposition of Defendant Microsemi's Motion to Strike, or, in the Alternative to Seal, Part of the Memorandum in Support of Plaintiff's Motion for a Temporary Restraining Order and Preliminary Injunction". The DOJ filed a complaint on December 18, 2008, against Microsemi alleging violation of federal antitrust law in connection with its acquisition of assets of Semicoa Inc. The DOJ stated in a release that "Microsemi eliminated or reduced competition in the development, manufacture and sale of certain semiconductor devices used in military and space programs essential to the security of the United States." The U.S. District Court is scheduled to hold a hearing on February 13, 2009, at 10:00 AM. This case is U.S. v. Microsemi, U.S. District Court for the District of Columbia, D.C. No. 1:08 CV 1311. See also, DOJ web page with hyperlinks to pleadings.

1/28. The Government Accountability Office (GAO), an arm of the Congress, released a report [36 pages in PDF] titled "Electronic Health Records: DOD’s and VA’s Sharing of Information Could Benefit from Improved Management".

1/28. The U.S. Patent and Trademark Office (USPTO) and the Korean Intellectual Property Office (KIPO) announced in a release that that they "will implement the Patent Prosecution Highway (PPH) on a full-time basis, beginning January 29, 2009. A pilot feasibility study of the PPH, which began January 28, 2008, is scheduled to end on January 28, 2009."

1/27. The Federal Trade Commission (FTC) announced in a release the issuance of orders in FTC District Court actions to enforce the FTC's Do Not Call Rule.

1/27. Gerald Lueders, a former employee of the Department of State (DOS), pled guilty in U.S. District Court (DC) to violation of 18 U.S.C. § 1030 in connection with his unauthorized accessing of computer databases, including the Passport Information Electronic Records System (PIERS), to view passport application files. See, DOJ release.

1/23. Incoming Secretary of Homeland Security Janet Napolitano issued a directive regarding cybersecurity. It states in full as follows: "Given the increasingly sophisticated number of threats to all areas of national cyberspace and considering the authorities provided by the Homeland Security Act, the Post-Katrina Emergency Management Reform Act, and Homeland Security Presidential Directive 23/National Security Presidential Directive 54, what are the authorities and responsibilities of DHS for the protection of the government and private sector domains, what are the relationships with other government agencies, especially the departments of Defense, Treasury, and Energy, and the National Security Agency, and what are the programs and timeframes to achieve the department's responsibilities and objectives? An oral report is due by Feb. 3, with a final report due Feb. 17." See, DHS release.

1/21. The Department of Justice's (DOJ) Antitrust Division and Microsoft filed with the U.S. District Court (DC) another of their periodic reports titled "Joint Status Report on Microsoft's Compliance with the Final Judgments". This case is U.S. v. Microsoft, D.C. No. 98-1232 (CKK).