|FCC Scheduled to Adopt Broadband
5/27. The Federal Communications Commission (FCC) released a
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
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'
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
|Obama Signs Satellite
5/27. President Obama signed into law S 3333
the "Satellite Television Extension and Localism Act of 2010", or "STELA".
See, White House news office
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
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
the "Department of Defense Appropriations Act, 2010", enacted in December of
2009, provided a two month extension, through February 28, 2010. Second, HR 4691
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
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
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. 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
5/24. The House passed HR 5330
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
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
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.
|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
New items are highlighted in
|Friday, May 28
The House will meet at 10:00 AM for legislative
business. It may consider HR 4213
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
for the week of May 24, and
schedule for May 28.
The Senate will meet at 10:00 AM. There will be no
Effective date of the Federal Communications Commission's (FCC)
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
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)
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,
[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
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,
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,
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
[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,
"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
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
5/27. The House Appropriations Committee
(HAC) postponed its meeting, scheduled for May 27, 2010, to mark up a FY 2010 supplemental
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
| 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
expressing the sense of Congress relating to a free trade agreement between
the U.S. and Taiwan.
|About Tech Law
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