12/23. The Federal Communications Commission (FCC) released the text of its Report and Order (R&O) [194 pages in PDF] that adopts rules for the regulation of broadband internet access service (BIAS) providers.

It adopted this R&O on December 21, 2010. It is FCC 10-201 in GN Docket No. 09-191 and WC Docket No. 07-52.

See also, stories in TLJ Daily E-Mail Alert No. 2,186, December 22, 2010:

• FCC Adopts BIAS Rules
• Obama Says the FCC's BIAS Rules Will Preserve Free and Open Internet
• Congressional Republicans Will Seek to Undo the FCC's BIAS Rules
• Commentary: the FCC's BIAS Rules and the Congressional Review Act
• BIAS Providers' Reactions to the FCC's BIAS Rules
• Reactions of the Not Far Enough Crowd
• The FCC's BIAS Rules and Infringing Distribution of Copyrighted Works
• Commentary: Where Are the FCC's BIAS Rules?

The substantive rules are set out in full below. (The procedural rules, which are longer, are at pages 90-96 of the R&O.)

§ 8.1 Purpose.

The purpose of this Part is to preserve the Internet as an open platform enabling consumer choice, freedom of expression, end-user control, competition, and the freedom to innovate without permission.

§ 8.3 Transparency.

A person engaged in the provision of broadband Internet access service shall publicly disclose accurate information regarding the network management practices, performance, and commercial terms of its broadband Internet access services sufficient for consumers to make informed choices regarding use of such services and for content, application, service, and device providers to develop, market, and maintain Internet offerings.

§ 8.5 No Blocking.

A person engaged in the provision of fixed broadband Internet access service, insofar as such person is so engaged, shall not block lawful content, applications, services, or non-harmful devices, subject to reasonable network management.

A person engaged in the provision of mobile broadband Internet access service, insofar as such person is so engaged, shall not block consumers from accessing lawful websites, subject to reasonable network management; nor shall such person block applications that compete with the provider’s voice or video telephony services, subject to reasonable network management.

§ 8.7 No Unreasonable Discrimination.

A person engaged in the provision of fixed broadband Internet access service, insofar as such person is so engaged, shall not unreasonably discriminate in transmitting lawful network traffic over a consumer’s broadband Internet access service. Reasonable network management shall not constitute unreasonable discrimination.

§ 8.9 Other Laws and Considerations.

Nothing in this part supersedes any obligation or authorization a provider of broadband Internet access service may have to address the needs of emergency communications or law enforcement, public safety, or national security authorities, consistent with or as permitted by applicable law, or limits the provider’s ability to do so.

Nothing in this part prohibits reasonable efforts by a provider of broadband Internet access service to address copyright infringement or other unlawful activity.

§ 8.11 Definitions.

(a) Broadband Internet access service. A mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up Internet access service. This term also encompasses any service that the Commission finds to be providing a functional equivalent of the service described in the previous sentence, or that is used to evade the protections set forth in this Part.

(b) Fixed broadband Internet access service. A broadband Internet access service that serves end users primarily at fixed endpoints using stationary equipment. Fixed broadband Internet access service includes fixed wireless services (including fixed unlicensed wireless services), and fixed satellite services.

(c) Mobile broadband Internet access service. A broadband Internet access service that serves end users primarily using mobile stations.

(d) Reasonable network management. A network management practice is reasonable if it is appropriate and tailored to achieving a legitimate network management purpose, taking into account the particular network architecture and technology of the broadband Internet access service.

12/23. Federal Communications Commission (FCC) officials announced on December 23, 2010, that the FCC will likely approve the merger of Comcast and NBC Universal in January of 2011, subject to conditions.

The FCC can be expected to approve all of the antitrust mergers reviews that it undertakes, and to impose conditions on the merged entity.

The FCC conducts de facto antitrust merger reviews, but does no block mergers. It sits on them until it has extracted concessions from the merging entities -- a de facto regulatory regime that applies to the merged entity, but not similarly situated companies.

The FCC has been sitting on this transaction for over a year. See, story titled "Comcast and GE Announce Joint Venture for NBC Universal" and related stories in TLJ Daily E-Mail Alert No. 2,020, December 3, 2009.

David Cohen, Comcast's EVP for Public Policy, stated in a release that "We are gratified that the FCC Chairman's Office has circulated an Order to the offices of all Commissioners that would lead to approval of our transaction."

He added that "we have continued to refine and enhance our commitments throughout the year-long review by the FCC and the DOJ. We believe the draft FCC order as circulated ensures these benefits will be realized and will enable us to operate the NBC Universal and legacy Comcast businesses in an appropriate way. We will continue to work with the Commissioners so that the FCC Order will not undermine our business combination and will ensure that consumers will benefit and that competitors are treated fairly."

In contrast, Corrie Wright of the Free Press stated in a release that "We are deeply disappointed that the FCC is apparently moving to approve this merger. Comcast’s takeover of NBC would have a harmful impact on competition and consumers, particularly in the emerging online video market. The conditions reportedly proposed by the FCC chairman recognize this danger, but we have serious concerns that they will go far enough to protect the public from this unprecedented media behemoth."

While some groups have asked the FCC to block this merger, as a practical matter, the FCC can be expected to approve subject to conditions, rather than deny, all mergers and similar transactions. This derives from the circumstance that the FCC does not have statutory antitrust merger review authority. With no final order denying the merger, there is nothing to contest in judicial review. If the FCC were to issue an order denying permission to merge, that would be reviewable, would be reviewed, and would result in a Court of Appeals holding that the FCC does not have antitrust merger review authority.

The closest that the FCC has come to blocking a merger was a decade ago when Bernie Ebbers was running WorldCom. Even then, the FCC waited until the DOJ, which has statutory antitrust merger review authority, had already blocked the merger. The FCC then assigned the matter for administrative hearing, thus forestalling any chance of judicial review.

Also, the transparency of this antitrust merger review process might be contrasted to the FCC's BIAS regulation process. On December 21, the FCC adopted both substantive regulations, and procedural regulations. For antitrust merger reviews, the FCC has yet to adopt either substantive or procedural rules.

Three of the most fundamental elements of transparent government are the existence of substantive and procedural statutes or rules that are written, clear, public and permanent, and the availability of judicial review of adjudicatory decisions. The FCC's antitrust merger review process fails on all three elements.

12/17. Secretary of Homeland Security Janet Napolitano gave a speech regarding cyber security in which she discussed, among other topics, joint DHS/NSA activities.

She said that "We have been spending a lot of time on cyber issues" at the Department of Homeland Security (DHS). "DHS Deputy Undersecretary Phil Reitinger has nearly tripled the size of the National Security Division cyber workforce this year over last year. And last year, we doubled it over the year before."

Napolitano (at right) stated that "cybersecurity isn't about control. It's not about government control. It is about partnerships. But partnership needs to have some effectiveness."

She cited as an example the DHS's "landmark agreement with Secretary Gates to better align our resources and actions", added that "we have cross-assigned individuals ... we have individuals who are now stationed at NSA", the Department of Defense's (DOD) National Security Agency, which intercepts, decrypts, and analyses communications.

See, DHS/DOD document [5 pages in PDF] titled "Memorandum of Agreement between the Department of Homeland Security and Department of Defense Regarding Cybersecurity", story titled "DHS and DOD Sign Cyber Security Agreement" in TLJ Daily E-Mail Alert No. 2,143, October 20, 2010, and story titled "ACLU Concerned About DOD DHS Cooperation on Cyber Security" in TLJ Daily E-Mail Alert No. 2,145, October 22, 2010.

She also said that "cyberspace is fundamentally a civilian space, and government has a role to help protect it, in partnership with responsible partners across the economy and across the globe."

"We're taking action to protect federal civilian networks, to improve our intrusion detection capabilities, and to create more robust and resilient systems that can withstand attacks, and also help prevent attacks from occurring", said Napolitano. "We have also in this past year I think expanded our partnerships with the private sector".

The House will not meet. It will next meet on January 5, 2011.

The Senate will not meet. It will next meet on January 5, 2011.

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

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 72771-72773.

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.

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12/23. Numerous groups and individuals joined in a letter [PDF] to various government officials regarding proposals to amend the Espionage Act, or enact other legislation, to enable criminal prosecution of persons such as Julian Assange, and entities such as WikiLeaks.

They urged "caution against any legislation that could weaken the principles of free expression vital to a democratic society or hamper online freedoms".

They wrote that "Publishers have a First Amendment right to print truthful political information free of prior restraint", pursuant to the Supreme Court's 1971 opinion in New York Times v. United States, 403 U.S. 713, the Pentagon papers case.

They also wrote that "Publishers are strongly protected by the First Amendment against liability for publishing truthful political information that is lawfully obtained, even if the original disclosure of that information to the publisher was unlawful", citing as authority for this proposition the Supreme Court's 2001 opinion in Bartnicki v. Vopper, 532 U.S. 514, a Wiretap Act case. See also, story titled "Supreme Court Diminishes Electronic Privacy" in TLJ Daily E-Mail Alert No. 192, May 22, 2001.

And, they wrote that "Internet users have a First Amendment right to receive information", and that the "public has a First Amendment right to voice opinions about government activities".

Those who joined in the letter include former Rep. Bob Barr (R-GA), the American Civil Liberties Union (ACLU), Center for Democracy and Technology (CDT), Electronic Frontier Foundation (EFF), and New America Foundation (NAF).

12/17. Rep. John Conyers (D-MI) introduced HR 6545 [LOC | WW], the "Corporate Crime Database Act".

This bill would require the Department of Justice (DOJ) to create, maintain, and provide public web access to, a massive database of all complaints -- administrative, civil, and criminal -- submitted to any state or federal agency, for which a fine of $1,000 could be assessed.

It would apply to "all administrative, civil, and criminal judicial proceedings initiated or concluded by the Federal Government and State governments against any corporation or corporate official acting in an official capacity involving a felony or misdemeanor charge or any civil charge where potential fines may be $1,000 or more".

It would cover any "proceedings initiated", and even proceedings that conclude with "findings of innocence".

Agencies such as the Federal Trade Commission (FTC) and Federal Communications Communications (FCC) receive thousands of complaints each year on many different issues, and for some matters, hundreds of thousands. This bill would impose huge burdens on such agencies.

However, the information technology companies that provide the software and servers and networking equipment, and design and set up such a databases, would benefit from enactment of this bill.

The bill was referred to the House Judiciary Committee (HJC) and the House Oversight and Government Reform Committee. Neither the House nor the Senate in the 111th Congress passed this bill. It lapses. However, Rep. Conyers might reintroduce it in the 112th Congress.

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