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May 28, 2010, Alert No. 2,089.
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FCC Scheduled to Adopt Broadband Reclassification NOI

5/27. The Federal Communications Commission (FCC) released a tentative agenda [PDF] for its event on Thursday, June 17, 2010, titled "open meeting". The FCC is scheduled to adopt only one item, a notice of inquiry (NOI) regarding reclassification of broadband internet access services as Title II services.

The tentative agenda states that the NOI will "consider possible legal frameworks for broadband Internet services".

On May 6, 2010, FCC Chairman Julius Genachowski released a paper [6 pages in PDF] in which he proposed to reclassify broadband internet access service as a Title II service, and regulate broadband internet access providers as common carriers.

Democratic Commissioners Michael Copps and Mignon Clyburn announced their support. Republican Commissioners Robert McDowell and Meredith Baker announced their opposition. See, story titled "Three FCC Democratic Commissioners Back Plan to Regulate Broadband Internet Access Services under Title II" and related stories in TLJ Daily E-Mail Alert No. 2,083, May 6, 2010.

Following Genachowski's lead, the FCC commenced a broader internet regulation rulemaking proceeding. See, stories titled "FCC Adopts Internet Regulation NPRM" and "Statutory Authority and Ancillary Jurisdiction", and related stories, in TLJ Daily E-Mail Alert No. 2,008, October 23, 2009. That proceeding remains open.

However, on April 6, 2010, the U.S. Court of Appeals (DCCir) vacated the FCC's Comcast order, and held that the FCC lacks statutory authority to regulate the network management practices of broadband internet access providers. See, opinion [36 pages in PDF] and story titled "Court of Appeals Vacates FCC's Comcast Order", and related stories, in TLJ Daily E-Mail Alert No. 2,072, April 7, 2010. Since the FCC's arguments that it has authority to writes rules in this area are the same arguments rejected in the Comcast case, the yet to be adopted internet regulation rules became destined for rejection by the courts.

Genachowski's proposal to reclassify broadband internet access services is an attempt to manufacture authority to regulate broadband providers, in the absence of statutory authority, and evade the holding of the Court of Appeals' Comcast opinion.

Genachowski has very little support from House or Senate Republicans in his efforts to regulate broadband internet access providers. Early this week over 70 House Democrats wrote to Genachowski to express concerns about his actions. On May 27, Rep. John Dingell wrote separately to express his concerns.

Walter McCormick, head of USTelecom, stated in a release that "Congressman Dingell's questions cut to the very heart of the FCC's Title II proposal and amplify the many concerns surrounding its impact on jobs, economic growth, and broadband deployment. When the Dean of the House and leading congressional oversight expert expresses doubt about both the wisdom and legality of an agency's course, the message is clear: It's time to change course. We are encouraged by Mr. Dingell’s recommendation that the FCC set aside this ill-fated plan and instead seek an appropriate delegation of statutory authority from Congress."

The FCC does not always hold its scheduled meetings at the scheduled time or date. The FCC does not always adopt all of the items on its agenda. The FCC usually does not release at its meetings the items that it adopts at its meetings. The FCC does not debate, draft, amend, or revise items at its meetings. These meetings are in large part ceremonial events.

Obama Signs Satellite TV Bill

5/27. President Obama signed into law S 3333 [LOC | WW], the "Satellite Television Extension and Localism Act of 2010", or "STELA". See, White House news office release.

This bill reauthorizes the Satellite Home Viewer Extension and Reauthorization Act of 2004 (SHVERA). It was enacted in 108th Congress, in late 2004, as one component of HR 4818, an omnibus appropriations bill. It became Public Law No. 108-447. The SHVERA contains statutory licenses that permit satellite television service providers to retransmit distant television broadcast station signals. These compulsory copyright licenses are codified at 17 U.S.C. § 119.

The statutory licenses in the SHVERA expired at the end of 2009. However, the Congress enacted a series of short term extensions. First, HR 3326 [LOC | WW], the "Department of Defense Appropriations Act, 2010", enacted in December of 2009, provided a two month extension, through February 28, 2010. Second, HR 4691 [LOC | WW], the "Temporary Extension Act of 2010", provided for a one month extension, through March 28, 2010. See, story titled "House and Senate Provide One Month Satellite Television Extension" in TLJ Daily E-Mail Alert No. 2,054, March 3, 2010. Third, S 3186 [LOC | WW] provided for another one month extension, through April 30, 2010. See, story titled "Satellite Licenses Extended for One Month" in TLJ Daily E-Mail Alert No. 2,066, March 29, 2010.

Sen. Patrick Leahy (D-VT), Chairman of the Senate Judiciary Committee (SJC), introduced S 3333 on May 7, 2010. However, this bill is built upon earlier bills introduced by members of the House and Senate Judiciary and Commerce Committees, and over a year of hearings, markups, and negotiations. The Senate passed this bill by unanimous consent on May 7. the House passed the bill without amendment by voice vote on May 12.

Sen. Leahy stated in the Senate on May 7 that "This legislation modernizes and extends important statutory copyright licenses that allow cable and satellite companies to retransmit the content transmitted by television broadcasters. STELA also includes important Communications Act authorizations that allow for the retransmission of broadcast television signals by satellite and cable providers." See, Congressional Record, May 7, 2010, at Page S3435.

S 3333 also provides incentives for satellite television service providers to provide local broadcast programming in all 210 markets in the US.

Rep. Rick Boucher (D-VA), the Chairman of the House Commerce Committee's (HCC) Subcommittee on Telecommunications, Technology and the Internet, stated in a release that "My major goal in reforming the Satellite Home Viewer Act has been to bring to all 210 local television markets across the nation what we call local-into-local television service through which local TV signals are transmitted by satellite to homes in the market where the TV stations are located. At present, 28 rural local markets do not have this service. Today, we have taken the final step in achieving this long held goal, and as a result, satellite TV subscribers everywhere will be able to receive both national programming and the local TV stations that serve their area".

Rep. Rick BoucherRep. Boucher (at right), who represents a rural district at the western end of the state of Virginia, also noted that Echostar, which operates the Dish Network, will provide local television signals in all 210 markets nationwide. He added that "on June 3 Dish Network will begin serving the many rural markets that lack vital local TV signals. I want to commend the leadership of Dish Network for making this commitment. Millions of homes in America's most rural regions will be the beneficiaries".

Prior to enactment of S 3333, the Dish Network was not permitted to use the Section 119 satellite license. It can now use the Section 119 license, but only if it provides local programming in every single market.

Sen. John Rockefeller (D-WV), Chairman of the Senate Commerce Committee (SCC), stated in a release that "All American families should have access to their local news, weather, sports and community programming -- anything less is unacceptable in the 21st century. This is about fairness and leveling the playing field. That's why I fought for greater competition and access to quality programming for consumers, especially those living in rural areas, like in my home state of West Virginia ... The enactment of this bill into law will preserve and improve consumer access to quality programming no matter who they are, or where they live."

S 3333 also revises the cable license codified at 17 U.S.C. § 111, which pertains to the retransmission of both local and distant programming by cable providers.

S 3333 also addresses the phantom signal problem in the cable license. Sen. Leahy explained in the Senate on May 7 that "One other important way that STELA will preserve and improve existing service for consumers is by correcting a flaw in the statutory copyright license for the cable industry. An unintended result of current law is that the cable license requires the cable industry to pay copyright holders for signals that many of their subscribers do not actually receive. This is often referred to as the phantom signal problem. The effect of this anomaly in the law is that Comcast is required to pay copyright royalties based on their subscriber base across the northeast for the Canadian television content that is only provided to subscribers in Burlington, VT. The bill corrects this flaw by giving the cable industry the flexibility to continue to provide signals that are tailored to local interests -- signals that might otherwise have been pulled from cable line-ups."

Kyle McSlarrow, head of the National Cable and Telecommunications Association (NCTA), stated in a release that "We're pleased that the Satellite Television Extension and Localism Act of 2010 is now law. This five-year extension provides certainty that will enable the multichannel video marketplace to keep investing, innovating and delivering the robust services that 100 million American consumers enjoy."

S 3333 also addresses the separate satellite license codified at 17 U.S.C. § 122, which pertains to local into local programming. It also addresses multicasting. It also provides an audit right for copyright owners.

House Passes Bill to Extend Antitrust Amnesty Provision

5/24. The House passed HR 5330 [LOC | WW], the "Antitrust Criminal Penalty Enhancement and Reform Extension Act", under suspension of the rules, by a vote of 366-4. See, Roll Call No. 293. This bill would extend for ten years provisions of the Antitrust Criminal Penalty Enhancement and Reform Act of 2004 (Public Law No. 108-237) which are scheduled to expire in June.

Rep. Jerrold Nadler (D-NY) stated in the House that "the 2004 act promotes the detection and prosecution of illegal cartel behavior by giving participants in a price-fixing cartel powerful incentives to report the cartel to the Justice Department's Antitrust Division and to cooperate in the investigation and prosecution". See, Congressional Record, May 24, 2010, at Page H3717.

He continued that in 1993 the Department of Justice's (DOJ) Antitrust Division established a program that "offers amnesty from criminal prosecution for the first company to report the cartel". Then, the 2004 act "limits the civil liability of the cooperating party to single damages. The remaining conspirators in the cartel, however, remain jointly and severally liable for all damages and treble damages. In this way the act strikes a carefully crafted balance, encouraging the cartel members to turn on each other while ensuring full compensation to the victims".

Rep. Hank Johnson (D-GA) introduced this bill on May 18, 2010. The Senate has yet to pass it.

Rep. Stearns Introduces Bill to Limit FCC Regulation of Internet

5/11. Rep. Cliff Stearns (R-FL) and other Republicans introduced HR 5257 [LOC | WW], the "Internet Investment, Innovation, and Competition Preservation Act", a bill to amend Title I of the Communications Act to prevent the Federal Communications Commission (FCC) from regulating any internet access service unless it first finds that there is a market failure.

Rep. Stearns stated in a release that "This bill would require the FCC to conduct a rigorous market analysis before mandating new network regulations. The FCC would need to prove that regulations are necessary and that there is a market failure that warrants regulatory intervention. In addition, it outlines the steps the FCC should take in completing this analysis. Also, the FCC would have to report the findings to Congress."

This bill provides, in part, that "To the extent that the Commission has the authority to regulate the rates, terms, conditions, provisioning, or use of an information service or an Internet access service, the Commission shall not regulate such rates, terms, conditions, provisioning, or use unless -- (A) the Commission first transmits a report to Congress concluding that -- (i) there is a market failure in the provision of such information service or Internet access service; (ii) there is substantial evidence that the market failure is causing specific, identified harm to consumers by preventing a substantial number of consumers nationwide from accessing a substantial amount of lawful Internet content, applications, and services of their choice on a continuing basis; and (iii) regulations are necessary to ameliorate the specific, identified harm to consumers resulting from the market failure".

The bill would also require the FCC to conduct a cost benefit analysis, and conduct a rule making proceeding.

In This Issue
This issue contains the following items:
 • FCC Scheduled to Adopt Broadband Reclassification NOI
 • Obama Signs Satellite TV Bill
 • House Passes Bill to Extend Antitrust Amnesty Provision
 • Rep. Stearns Introduces Bill to Limit FCC Regulation of Internet
 • More Capitol Hill News
Washington Tech Calendar
New items are highlighted in red.
Friday, May 28

The House will meet at 10:00 AM for legislative business. It may consider HR 4213 [LOC | WW]. See, story titled "House to Take Up Tax Bill with Tech Provisions" in TLJ Daily E-Mail Alert No. 2,086, May 21, 2010. See, Rep. Hoyer's schedule for the week of May 24, and schedule for May 28.

The Senate will meet at 10:00 AM. There will be no votes.

Effective date of the Federal Communications Commission's (FCC) Order on Reconsideration [94 pages in PDF] eliminating the home roaming exclusion. The FCC adopted and released this item on April 21, 2010. It is FCC 10-59 in WT Docket No. 05-265. See also, notice in the Federal Register, April 28, 2010, Vol. 75, No. 81, Pages 22263-22276.

Monday, May 31

The House will not meet the week of May 31 - June 4, 2010. See, 2010 House calendar.

The Senate will not meet the week of May 31 - June 4, 2010. See, 2010 Senate calendar.

Memorial Day. This is a federal holiday. See, Office of Personnel Management's (OPM) web page titled "2010 Federal Holidays".

The National Press Club will be closed.

Tuesday, June 1

9:30 - 11:00 AM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "Comcast Ruling: Now What?". See, ITIF notice. See also, April 6, 2010, opinion [36 pages in PDF] of the U.S. Court of Appeals (DCCir). And see, story titled "Court of Appeals Vacates FCC's Comcast Order", and related stories, in TLJ Daily E-Mail Alert No. 2,072, April 7, 2010. Location: ITIF, Room 610, 1101 K St., NW.

Extended deadline to comply with certain rules promulgated by the Board of Governors of the Federal Reserve System and the Department of the Treasury pursuant to the Unlawful Internet Gambling Enforcement Act (UIGEA). This deadline pertains to the rules that require non-exempt participants in designated payment systems to establish and implement written policies and procedures that are reasonably designed to identify and block or otherwise prevent or prohibit unlawful Internet gambling transactions restricted by the UIGEA. See, notice in the Federal Register, December 1, 2009, Vol. 74, No. 229, at Pages 62687-62688. The UIGEA was enacted in 2007 in the 109th Congress Title VIII of HR 4954 (109th), the "Port Security Improvement Act of 2006". It is now Public Law No. 109-347.

Deadline to submits comments to the Office of the U.S. Trade Representative (OUSTR) regarding environmental issues associated with the proposed Trans-Pacific Partnership Trade Agreement (TPP). See, notice in the Federal Register, March 25, 2010, Vol. 75, No. 57, at Pages 14479-14481.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding the Federal State Joint Board on Separations' interim adjustment of separations allocation factors and category relationships pending comprehensive separations reform. See, Public Notice released on March 30, 2010. It is FCC 10J-1 in CC Docket No. 80-286.

Deadline to submit comments to the Department of Justice's (DOJ) Drug Enforcement Administration (DEA) regarding its Interim Final Rule with Request for Comment regarding writing prescriptions for controlled substances electronically. The DEA requests comments regarding identity proofing, access control, authentication, biometric subsystems and testing of those subsystems, internal audit trails for electronic prescription applications, and third-party auditors and certification organizations. See, notice in the Federal Register, March 31, 2010, Vol. 75, No. 61, at Pages 16235-16319.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Second Further Notice of Proposed Rulemaking regarding changes to Part 90 of the FCC's rules regarding wireless technologies, devices, and services. The FCC adopted this item on March 3, 2010, and released the text [44 pages in PDF] on March 10, 2010. It is FCC 10-36 in WP Docket No. 07-100. See, notice in the Federal Register, April 14, 2010, Vol. 75, No. 71, at Pages 19340-19345.

Wednesday, June 2

12:00 NOON - 1:00 PM. David Kappos, head of the U.S. Patent and Trademark Office (USPTO), will give a speech titled "Unleashing Intellectual Property to Fuel Growth and Create Jobs". See, notice. The event is free and open to the public, but registration is required. Location: Center for American Progress, 10th floor, 1333 H St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding whether, how, and under what circumstances federally recognized Native American Tribes and Alaska Native Villages should receive a bidding credit in auctions for new radio stations, and whether and how the Tribal Priority adopted in the First Report and Order (First R&O) in this proceeding might be claimed by Tribes that do not possess defined tribal lands. This FNPRM is FCC 10-24 in MB Docket No. 09-52. The FCC adopted it on January 28, 2010, and released the text [58 pages in PDF] on February 3, 2010. See, notice in the Federal Register, March 4, 2010, Vol. 75, No. 42, at Pages 9856-9859.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding tank level probing radar (TLPR) devices to operate in the 77-81 GHz frequency band on an unlicensed basis under Part 15 of the FCC's rules. This NPRM is FCC 10-14 in ET Docket Nos. 10-23, 07-96, and 06-216. The FCC adopted it on January 14, 2010, and released the text [21 pages in PDF] on January 19, 2010. See, notice in the Federal Register, March 4, 2010, Vol. 75, No. 42, at Pages 9850-9856.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its second draft of IR 7628 [305 pages in PDF] titled "Smart Grid Cyber Security Strategy and Requirements". See also, notice in the Federal Register, April 13, 2010, Vol. 75, No. 70, at Pages 18819-18823.

Thursday, June 3

8:00 AM - 12:15 PM. The Public Knowledge (PK) will host a half day conference titled "Toward a Sustainable Spectrum Policy: Rethinking Federal Spectrum". Location: Washington Court Hotel on Capitol Hill, 525 New Jersey Ave., NW.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) International Telecommunications and Privacy and Data Security Committees will host a brown bag lunch titled "Addressing Privacy Issues Abroad, Including Changes to EU Directives, key issues facing the U.S., EU and Markets Such as Asia, Latin America and Updates on Current Global Privacy Debates". The speakers will be Christopher Boam (Verizon Communications), Timothy Tobin (Hogan & Hartson), Tony Hadley (Experian), Damon Greer (DOC's International Trade Administration), Yael Weinman (Federal Trade Commission). For more information, contact Linda Cicco at Linda dot cicco at bt dot com or Jennifer Ullman at Jennifer dot ullman at verizon dot com. Location: Willkie Farr & Gallagher, 1875 K St., NW.

Friday, June 4

10:00 AM. The Securities and Exchange Commission (SEC) will hold a seminar on the use of eXtensible Business Reporting Language (XBRL) by mutual funds to comply with new rules that require them to file data in the risk/return summary section in XBRL format. See, notice. Location: SEC, auditorium, 100 F St., NE.

More Capitol Hill News

5/27. President Obama signed into law S 1782, [LOC | WW], the "Federal Judiciary Administrative Improvements Act of 2010". See, White House news office release. Sen. Sheldon Whitehouse (D-RI) introduced this bill on October 14, 2009. The Senate passed this bill on March 17, 2010. The House passed it on May 18, 2010. This bill, among other things, amends 18 U.S.C. § 2519, regarding "Reports concerning intercepted wire, oral, or electronic communications". It makes minor changes to the statistical reporting schedule for Title 18 wiretap orders. Rep. Hank Johnson (D-GA) stated in the House that "the bill adjusts the deadline for both State and Federal judges to file their wiretap totals with the Administrative Office of the Courts so that the annual wiretap report to Congress is accurate and does not later require a later addendum". See, Congressional Record, May 18, 2010, at Page H3500.

5/27. The House Appropriations Committee (HAC) postponed its meeting, scheduled for May 27, 2010, to mark up a FY 2010 supplemental appropriations bill.

5/11. Rep. John Conyers (D-MI) and Rep. Lamar Smith (R-TX), the Chairman and ranking Republican of the House Judiciary Committee (HJC), introduced HR 5264 [LOC | WW], a bill to authorize appropriations for the Department of Justice (DOJ) for fiscal year 2011.

5/6. Rep. Jim Langevin (D-RI) and others introduced HR 5247 [LOC | WW], a bill to establish a National Cyberspace Office.

5/6. Rep. Robert Andrews (D-NJ), Rep. Scott Garrett (R-NJ) and Rep. John Culberson (R-TX) introduced  HConRes 276, expressing the sense of Congress relating to a free trade agreement between the U.S. and Taiwan.

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