|FCC to Adopt BIAS Rules
12/20. The Federal Communications Commission (FCC) is scheduled to hold
meeting of Commissioners on Tuesday, December 21, 2010, at which it will adopt,
but not release, a Report and Order (R&O) regarding FCC regulation of broadband
internet access service (BIAS).
The FCC has not released the R&O. Nor has it released the rules to be included in the
R&O. It may release the rules, but not the R&O, at the December 21 event.
The vote is likely to break down along partisan lines. Democrats Julius
Genachowski, Michael Copps, and Mignon Clyburn will vote for, or concur in, the
R&O. Republicans Robert McDowell and Meredith Baker will vote against the R&O.
Various affected parties may then seek to have the Court of Appeals vacate
the rules on the grounds that the FCC lacks statutory authority to do so. The
legal reasoning for doing so would be very similar to the legal reasoning of the
U.S. Court of Appeals (DCCir) in
Comcast v. FCC.
See, April 6, 2010,
opinion [36 pages in PDF], and
titled "Court of Appeals Vacates FCC's Comcast Order", and related stories, in
TLJ Daily E-Mail
Alert No. 2,072, April 7, 2010.
Also, Representatives and Senators may seek to undo these rules by
legislation. For example, an appropriations bill could simply deprive the FCC of
funds to implement or enforce these rules.
Commissioner Copps, who favors more regulatory mandates than are embodied in
the putative rules, wrote in a statement released on December 20 that "I will
not block it by voting against it".
Commissioner Clyburn stated in a
December 20 that "I plan to vote to approve in part and concur in part".
Commission Copps stated that "The item we will vote on tomorrow is not the
one I would have crafted. But I believe we have been able to make the current
iteration better than what was originally circulated. If vigilantly and
vigorously implemented by the Commission -- and if upheld by the courts -- it
could represent an important milestone in the ongoing struggle to safeguard the
awesome opportunity-creating power of the open Internet. While I cannot vote
wholeheartedly to approve the item, I will not block it by voting against it. I
instead plan to concur so that we may move forward."
He also stated that "These past three weeks have been devoted on my part to
intensive discussions about ensuring the continued openness of the Internet and
putting consumers, not Big Phone and Big Cable, in maximum control of their
online experiences. I have been fighting for nearly a decade to make sure the
Internet doesn't travel down the same road of special interest consolidation and
gate-keeper control that other media and telecommunications industries -- radio,
television, film and cable -- have traveled."
Commissioner Clyburn wrote in her statement that "The
open Internet is a crucial American marketplace, and I believe that it is
appropriate for the FCC to safeguard it by adopting an Order that will establish
clear rules to protect consumers’ access."
She added that "while not as strong as they could be, will nonetheless protect
consumers as they explore, learn, and innovate online. As such, I plan to vote to approve
in part and concur in part the Open Internet Order during the FCC’s open meeting
Gigi Sohn, head of the Public Knowledge, and a proponent of reclassification of BIAS
as a Title II service, stated in a release that "Instead of strong, firm rules providing
clear protections, the Commission, created a vague and shifting landscape open to
interpretation." She also complained about the putative rules' less regulatory treatment
of wireless BIAS.
She also stated that "That the FCC has left the door open for paid prioritization is
distressing ... The notion that a deep-pocketed company, through paid prioritization, could
pay to have its service moved ahead in the queue or transmitted faster than another is deeply
troubling in a medium founded on the idea that everyone has a chance to reach someone else
without interference from the carrier in the middle."
In contrast, Randy May, head of the Free State Foundation (FSF), called the putative rules
an "unnecessary step to regulate the Internet". He added that "The Commission
is acting on dubious legal authority, in the face of widespread, bipartisan opposition, to
adopt a new Internet regulatory regime to ``fix´´ a problem that doesn't
|Obama Addresses Export Control
12/16. President Obama gave a
speech on December 9, 2010, at a meeting of the
President's Export Council (PEC),
in which discussed several trade related topics, including changes to the US
export regulation regime.
Summary. He stated that the regulations are a "maze" and "onerous"
and that they are being reformed. He also announced several items that are a part of an ongoing
The President announced several incremental developments in his efforts to
reform the export control regime, which has long been divided, complex, and
harmful to U.S. companies' ability to compete abroad. The regime regulates
exports, not only of military items, but also of software and computers, on the basis
that these are dual use items, with both commercial and military applications.
On December 9, 2010, President Obama announced the launch of an informational web page. He
also announced several rulemakings. And, the government departments that regulate exports
released notices of proposed changes to their rules.
Two advance notice of proposed rulemakings (ANPRMS) address making the rules more clear.
One Department of Commerce (DOC) NPRM would create a new license exception that would allow
exports of controlled items to countries that are members of all four multilateral export
control regimes or other regime members that also are members of NATO. See also, White House
The President announced no legislative proposals, although that will ultimately be necessary.
That would come later in the President's reform process.
President Obama also expressed his hope that exports will double in five years.
The goals, or holy grail, of this process include (1) producing a single,
tiered, comprehensible, positive list, (2) using a single information technology
(IT) system, and (3) having a single licensing agency.
President Obama announced plans to reform the export control process in
August of 2009. In October of 2009, Secretary of Commerce
Gary Locke stated that "reforming the current system is a high priority for
the Obama administration". He also said that "Fundamental reform will
likely require new statutory authority and action from Congress." See, October 21, 2009,
"Locke Addresses Reforming the Export Control System" in
TLJ Daily E-Mail
Alert No. 2,001, October 12, 2009.
In April of 2010, the President and others outlined a reform strategy. See,
White House news office
release of April 20, 2010. He again spoke on the reform process in August of this year.
See, White House news office
release of August 30, 2010, and Obama's
speech of August 30, 2010.
John Engler, head of the National Association of
Manufacturers (NAM), stated in a
release that "Manufacturers are pleased the Administration listened to the
business community and is moving forward with the most sweeping export control
reform in the last 50 years."
Obama's December 9 Speech. President Obama stated in his December 9 speech that
"we've also been working to reform our export control system with high-tech companies ...
so that American firms that make products with national security implications can stay
competitive even as we better protect our national security interests."
He announced that "we're publishing a first set of guidelines for what products should
be controlled going forward, and the licensing policies that will apply to them".
"Typically", the President explained, "all businesses that export have to go
through a maze of different lists, different formats, from different departments, to make
sure they're not selling their products somewhere or to someone that they shouldn’t be.
As important as that is, the process is repetitive, it's redundant, and particularly onerous
for small businesses without the means to navigate it all."
He said that "we're changing that. Effective today, businesses can, for the
very first time, go to Export.gov and download one consolidated list of entities
that have special export requirements."
Regulatory Background. Two departments regulate exports. The Department of State's (DOS)
Directorate of Defense Trade Controls (DDTC)
administers the International Traffic in Arms Regulations (ITAR). The Department of Commerce's
(DOC) Bureau of Industry and Security (BIS) administers
the Commerce Control List (CCL) among other things.
The DOC/BIS regulates dual use items, including
things such as software, computers, and encryption products that may also have military uses.
The statute that the DOC/BIS regulations implement is the Export Administration
Act of 1979, which was drafted with reference to the cold war between the US and
Soviet Union. It expired in 2001.
However, another statute gives authority to implement it, provided the President issues
an emergency order every year. Presidents Obama and Bush have routinely issued these orders.
See for example, story titled "Obama Issues Routine Annual Emergency Declaration to
Continue Export Regulation Regime" in
TLJ Daily E-Mail Alert No.
2,125, August 18, 2010.
The Congress was working on export control legislation a decade ago. Bills
were drafted, debated, and amended. But, the House and Senate substantially
dropped these efforts after September 11, 2001.
NPRMs. On December 10, the DOS/DDTC published a
notice in the Federal Register that announces, describes, and sets the comment deadline for
its "advance notice of proposed rulemaking" (ANPRM) regarding revisions to the
United States Munitions List (USML). The deadline to submit comments is February
8, 2011. See, Federal Register, December 10, 2010, Vol. 75, No. 237, at Pages 76935-76940.
This notice states that this ANPRM does not seek "input on whether particular defense
articles should or should not be controlled on the USML or whether any defense articles should
be controlled differently. Rather, it is only seeking with this ANPRM input on how the USML can
be revised so that it clearly describes what is subject to the jurisdiction of the International
Traffic in Arms Regulations (ITAR), how defense articles are identified by tier, and what current
defense articles do not fall within the scope of any of the tiers."
On December 9, the DOC/BIS published a
notice in the Federal Register
that announces, describes, and sets the comment deadline for its ANPRM regarding revisions to
its rules to make the descriptions of items controlled on the CCL more clear, positive, and
tiered. The deadline to submit comments is February 7, 2011. See, Federal Register, December
9, 2010, Vol. 75, No. 236, at Pages 76664-76666.
Also on December 9, the DOC/BIS published a second
notice in the Federal Register
that announces, describes, and sets the comment deadline for its NPRM regarding creating a new
license exception to the EAR "to allow exports, reexports and transfers (in-country) of
specified items to destinations that pose little risk of unauthorized use of those items. To
provide assurance against diversion to unauthorized destinations, transactions under this
license exception would be subject to notification, destination control statement and consignee
statement requirements." The deadline to submit comments is February 7, 2011. See,
Federal Register, December 9, 2010, Vol. 75, No. 236, at Pages 76653-76664.
Congressional Activity. Rep. Howard
Berman (D-CA), the Chairman of the
House Foreign Affairs Committee,
stated in a
that "The President's export control reform initiative is making progress in meeting
the goals of better protecting national security while strengthening America’s high technology
sector and promoting job growth through increased exports."
Rep. Berman (at left) continued that "I
have advanced through the House significant improvements in the Arms Export Control Act,
incorporated in H.R. 2410, the Foreign Relations Authorization Act, to rationalize control
policy for commercial satellites, streamline and establish benchmarks for license
processing, expedite license processing for transfers to our closest allies and
revamp Congressional oversight of licensing."
The House passed HR 2410
WW] on June 9, 2009,
by a vote of 235-187. See, Roll Call No.
328. It was a nearly straight party line vote. Only seven Republicans vote for the bill.
Neither the Senate Foreign Relations Committee, nor the full Senate, have passed this bill.
Rep. Berman added that "In addition, major progress has been made in drafting and
building support in Congress for a complete modernization of the Export Administration Act, to
provide a flexible authority to the President, refocus the system on counteracting today’s and
tomorrow's threats and break new ground by defining national security to include both control
requirements and U.S. scientific and technological leadership."
He wrote that "In the upcoming 112th Congress, these legislative initiatives should
remain priorities with incoming House Republican leadership. The modernization of our export
control systems is essential both to protect national security and foster U.S. technological
leadership for U.S. economic growth."
GAO Findings. On December 16, 2010, the
Government Accountability Office (GAO) release a
letter [25 pages in PDF]
to Sen. Jon Kyl (R-AZ) and
Sen. Russ Feingold (D-WI) regarding "Export
Controls: Agency Actions and Proposed Reform Initiatives May Address Previously Identified
Weaknesses, but Challenges Remain". (It is dated November 16, 2010.)
This letter concludes that "The export control reform
framework -- as proposed -- has the potential to address weaknesses in the U.S.
export control system related to control lists, licensing, enforcement, and
information technology, including areas where agencies have not addressed prior
"However, for a few areas, such as developing measures of
effectiveness for the arms export control system, agencies have not addressed
some of our prior findings and the reform framework does not contain specific
initiatives to address them."
|This issue contains the following items:
• FCC to Adopt BIAS Rules
• Obama Addresses Export Control Reform Process
• Rep. Smith Announces Reorganization of House Judiciary Committee
New items are highlighted in
|Tuesday, December 21
The House will meet at 10:00 AM for
legislative business. The House may take up HR 5116
the "America COMPETES Reauthorization Act of 2010", and/or
HR 3082 [LOC |
WW], an omnibus
appropriations bill, with technology related provisions. See, Rep. Hoyer's
schedule for December 21.
The Senate will meet at 9:30 AM. It may
consider HR 3082 [LOC
| WW], an omnibus
appropriations bill, with technology related provisions.
10:30 AM. The Federal Communications Commission
(FCC) will hold an event titled "open meeting". The
includes adoption of two items: broadband internet access service (BIAS) rules and a 911 notice
of inquiry (NOI). See, story titled "FCC Releases Agenda for December 21 Meeting"
in TLJ Daily E-Mail Alert No. 2,179, December 15, 2010. The FCC will webcast this event.
Location: FCC, Commission Meeting Room, 445 12th St., SW.
RESCHEDULED FOR JANUARY 27.
12:00 NOON - 2:00 PM. The
DC Bar Association will host an event titled
"False Patent Marking: Now What?". The speakers will be
Elizabeth Winston (Catholic University
law school), Robert Shaffer (Finnegan),
Maureen Browne (Covington & Burling). See,
U.S.C. § 292, regarding false marking. See also, the December 28, 2009,
[16 pages in PDF] of the U.S. Court of Appeals
(FedCir) in The Forest Group, Inc. v. Bon Tool Company construing Section 292. See
also, HR 4954 [LOC
an untitled bill, and HR 6352
WW], the "Patent
Lawsuit Reform Act of 2010"; both would amend Section 292; the House has passed
neither. And see, story titled "Representatives Introduce Bill to Amend Patent Act
Regarding Remedies for False Markings" in
TLJ Daily E-Mail Alert No.
2,067, March 30, 2010. The price to attend ranges from $40 to $55. For more information,
contact 202-626-3463. See,
notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.
|Wednesday, December 22
No events listed.
|Thursday, December 23
No events listed.
|Friday, December 24
Christmas Day (observed). This is a federal holiday. See,
Office of Personnel Management's (OPM)
page titled "2010 Federal Holidays".
|Monday, December 27
Deadline to submit initial comments to the Federal
Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM)
regarding regulating the billing and notice practices of mobile service providers.
The FCC adopted and released this NPRM on October 14, 2010. It is FCC 10-180 in CG Docket
Nos. 10-207 and 09-158. See,
notice in the Federal Register, November 26, 2010, Vol. 75, No. 227, at Pages 72773-72777.
See also, story titled "FCC Adopts Bill Shock NPRM" in
TLJ Daily E-Mail
Alert No. 2,142, October 19, 2010.
Deadline to submit comments to the
Copyright Office (CO) in response to
its notice of proposed rulemaking (NPRM) regarding notices of termination of
certain grants of transfers and licenses of copyright under
17 U.S.C. § 203.
See, notice in
the Federal Register, November 26, 2010, Vol. 75, No. 227, at Pages
Deadline to submit comments to the Department of Transportation's (DOT)
Intelligent Transportation Systems Program Advisory Committee (ITSPAC) in
advance of its meeting on January 6-7, 2011, in Oakland, California. See,
notice in the
Federal Register, December 14, 2010, Vol. 75, No. 239, at Page 77955.
|Tuesday, December 28
No events listed.
|Rep. Smith Announces Reorganization of House
12/20. Rep. Lamar Smith (R-TX), who will
be the Chairman of the
House Judiciary Committee (HJC) in the
112th Congress, announced a reorganization of the subcommittees of the HJC.
However, he has yet to announce the subcommittee chairmen. See,
Smith (at right) stated that "I plan to focus on efforts to strengthen national
security, protect intellectual property, prevent frivolous lawsuits and keep
children safe from Internet sex predators. Much of that work will begin in the
There will be an intellectual property (IP) subcommittee in the 112th
Congress. There is currently
no IP subcommittee. It might also be noted that neither the House, nor the HJC, passed
HR 1260 [LOC |
the "Patent Reform Act of 2009", or
any other patent reform bill in the 111th Congress.
Moreover, the most significant copyright bill to be passed by the 111th Congress was the
S 3689 [LOC |
Cleanup, Clarification, and Corrections Act of 2010". See, story titled "Obama Signs
Copyright Cleanup Bill" in TLJ Daily E-Mail Alert No. 2,176, December 12, 2010.
Rep. Smith stated that "One important change is the creation of a new
intellectual property subcommittee. The protection of America's intellectual
property is critical to our economic growth, job creation and ability to compete
in the global marketplace. A separate IP subcommittee will ensure that the
Committee remains focused on all aspects of intellectual property, including
patent reform and copyright protections".
The HJC and its recreated Subcommittee may resume IP related legislative activity. Possible
legislation includes a broad patent reform bill, narrow patent bills that target subjects such
as false patent markings, and a performance rights bill.
The Subcommittee may also consider legislation to expand the
Department of Justice's (DOJ)
authority to seize domain names of web sites dedicated to infringing activity, and
injunctive relief against financial entities and other intermediaries. See for example, S 3804
"Combating Online Infringement and Counterfeits Act", and story titled "Senate
Judiciary Committee Approves Domain Name Seizure Bill" in
TLJ Daily E-Mail
Alert No. 2,158, November 17, 2010.
Also, this new subcommittee, titled the "Subcommittee on Intellectual Property, Competition,
and the Internet", will also handle competition law matters, and oversight of the antitrust
activities of the Federal Trade Commission (FTC) and Department
of Justice's (DOJ) Antitrust Division. Currently, there
is a "Subcommittee on Courts and Competition Policy".
Increasingly, the new and complex issues and cases faced by antitrust
regulators and the courts involve intellectual property based companies, and IP
related issues such as licensing and standards setting.
In the 112th Congress bills and oversight pertaining to the federal judiciary will be handled
by the "Subcommittee on Courts, Commercial and Administrative Law". In the past, the
court and IP functions were combined in one subcommittee.
The title and responsibilities of the "Subcommittee on Crime, Terrorism, and Homeland
Security" will remain unchanged.
The immigration subcommittee will get a new title, reflecting the policy
goals of Rep. Smith and others in enforcement. The current title is
"Subcommittee on Immigration, Citizenship, Refugees, Border Security, and
International Law". In the 112th Congress it will be the "Subcommittee on
Immigration Policy and Enforcement".
The current "Subcommittee on the Constitution, Civil Rights, and Civil
Liberties" will be renamed "Subcommittee on the Constitution".
This subcommittee's responsibilities will include tort reform, which is a priority for
Rep. Smith and other Republicans, but not for the Democrats on the HJC. The Democratic on the
HJC who has worked most with Republicans on tort reform in the last decade is
Rep. Rick Boucher (D-VA). He lost in the November 2
Rep. Smith's release is not clear on the point that this Subcommittee will
continue to oversee the DOJ's Civil Rights
Division. This Division handles numerous non-technology related matters of
interest to HJC members, such as voting rights. However, this Division is also
currently involved in expanding the scope of the Americans with Disabilities Act
(ADA) by regulation to reach the design of new information technologies.
Rep. Smith's announcement is also not clear as to whether the Subcommittee on Crime or the
Subcommittee on the Constitution will handle extending the sunsets on expiring provisions of
the Foreign Intelligence Surveillance Act (FISA), reforming the Electronic Communications
Privacy Act (ECPA), and revising the Espionage Act (EA) to address activities of entities such
See also, stories titled "Republicans Assigned to House Judiciary Committee" in
TLJ Daily E-Mail Alert No. 2,182, December 18, 2010, and "Rep. Lamar Smith to Chair House
Judiciary Committee" in TLJ Daily E-Mail Alert No. 2,173, December 9, 2010.
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