12/1. The House Commerce Committee's (HCC) Subcommittee on Communications and Technology (SCT) amended and approved the Republican discussion draft [113 pages in PDF] titled the "Jumpstarting Opportunity with Broadband Spectrum (JOBS) Act of 2011".

The vote on final passage was 17-6. All 16 Republican members of the Subcommittee voted for the bill. Rep. John Barrow (D-GA) also voted for the bill. Rep. Bobby Rush (D-IL), Rep. Ed Towns (D-NY) and Del. Donna Christensen (D-VI), the black members of the Subcommittee, did not vote. Rep. Mike Doyle (D-PA) did not vote. Six Democrats voted no. See, roll call.

This bill would give the Federal Communications Commission (FCC) voluntary auction authority, and provide up to $3 Billion for broadcasters relocation expenses out of auction proceeds. It would also provide for allocation of the 20 MHz of contiguous spectrum known as the D Block for a public safety network, funding for that network, and a governance model. As amended, the bill would also address next generation 911 services.

Members of the Subcommittee, and especially Rep. Greg Walden (R-OR) and Rep. Anna Eshoo (D-CA), the Chairman and ranking Democrat on the HCC/SCT, engaged in a lengthy debate.

Rep. Walden wrote in his prepared statement that this bill "didn't just drop out of the sky. It is thoughtful and carefully crafted legislation that finds the right balances. Its provisions were improved as a result of the input and counsel from five hearings, eleven months of discussions with members of both sides of this committee, the FCC and NTIA, the industries that rely on spectrum to bring us television and broadband, broadcasters, amateur radio operators, and public safety officials".

Rep. Fred Upton (R-MI), the Chairman of the full Committee, wrote in his prepared statement that "the minority has been unwilling to make any significant concessions from their original position. As a result, we are moving forward today with a draft that does not have the bipartisan support we had hoped, but one that nonetheless incorporates many of the suggestions made by the Democrats throughout the negotiation process".

Amendments. The Subcommittee rejected on a straight party line vote an amendment offered by Rep. Eshoo that would have substituted the HCC Democrats' bill, HR 3509 [LOC | WW], the "Wireless Innovation and Public Safety Act of 2011", for the Republicans' discussion draft. See, roll call.

The Subcommittee approved by voice vote an amendment offered Rep. Brian Bilbray (R-CA) and Rep. John Dingell (D-MI), who represent districts near Mexico and Canada, respectively, to provide for international coordination with the nations of Mexico and Canada. Gordon Smith, head of the National Association of Broadcasters (NAB), praised the amendment in a release. He stated that it ensures "that U.S. TV stations along the Canadian and Mexican borders aren't repacked out of business".

The Subcommittee approved by voice vote an amendment offered by Rep. Mike Rogers (R-MI) regarding national security restriction on use of funds and auction participation. Rep. Rogers is also Chairman of the House Intelligence Committee (HIC).

The Subcommittee approved by voice vote a manager's amendment offered Rep. Walden that makes 16 technical changes to the bill.

The Subcommittee approved by voice vote an amendment [25 pages in PDF] offered by Rep. John Shimkus (R-IL) and Rep. Eshoo that adds the text of HR 2629 [LOC | WW], the "Next Generation 9-1-1 Advancement Act of 2011" to the bill. These two representatives introduced this as a stand alone bill on July 22, 2011. This language is also in HR 3509, the Democrats' bill.

Rep. Stearns offered and withdrew an amendment that would amend 47 U.S.C. § 154 to allow each of the Commissioners of the FCC to "also appoint an electrical engineer or computer scientist" to his or her personal staff.

Rep. Rush offered and withdrew an amendment that would amend the Internal Revenue Code regarding tax treatment of voluntary relinquishment of some or all of a broadcast television licensee’s spectrum usage rights.

The Subcommittee also approved by voice vote an amendment offered by Rep. Marsha Blackburn (R-TN) that would prevent the FCC from using auction authority to impose network neutrality mandates on auction winners. She called it a "back door means" of imposing network neutrality.

Her amendment states that "In assigning licenses through a system of competitive bidding under this subsection, the Commission may not impose any condition on the licenses assigned through such system that -- (A) limits the ability of a licensee to manage the use of its network, including management of the use of applications, services, or devices on its network, or to prioritize the traffic on its network as it chooses; or (B) requires a licensee to sell access to its network on a wholesale basis."

Members of the Subcommittee in engaged in the same debate that has been repeated for years over the merits of regulation of the network management practices of broadband internet access service providers. Rep. Ed Markey (D-MA) gave the same speech that he has been delivering for decades about the horrors of that bygone era when everyone used AT&T's black rotary dial phones.

Rep. Waxman noted that this provision had been in an earlier draft of the Republican bill, but that Rep. Walden took it out. Rep. Waxman acknowledged that the Republicans have the votes to pass the amendment in Subcommittee, but that this provision would not be approved by the Senate. He called it a "poison pill" that could bring down the whole bill. He said that "you are going to have to take it out eventually".

The amendment does not direct the FCC to repeal its network neutrality rules. However, if enacted into law, it could become significant in the event the Court of Appeals overturns the FCC's network neutrality rules. The current FCC Chairman, Julius Genachowski, might then impose network neutrality obligations upon spectrum auction winners via the auction process. This amendment would have the effect of preventing Genachowski from resorting to this tactic.

Reaction. Gordon Smith stated that the NAB "strongly endorses spectrum provisions in the incentive auction bill passed out of the House telecommunications subcommittee today. This bill balances sound spectrum policy with protections against the potential considerable loss of local TV service by millions of Americans." He added that the "NAB's position on TV spectrum auctions remains unchanged: We support them so long as they are truly voluntary, and so long as TV stations that choose to remain in business are held harmless."

Steve Largent, head of the CTIA, stated in a release that the "CTIA is pleased that the subcommittee approved the JOBS Act to authorize incentive auctions and free additional spectrum for wireless broadband services. We thank Subcommittee Chairman Walden and Chairman Upton for their leadership in moving the bill through today's mark-up. We look forward to seeing this important legislation considered by the full Energy and Commerce Committee as soon as possible

Gary Shapiro, head of the Consumer Electronics Association (CEA), stated in a release before the mark up that the JOBS Act is "an important step toward making more spectrum available for wireless broadband via incentive spectrum auctions." He continued that "Fewer than 10 percent of Americans now rely on over-the-air spectrum to watch TV while the exploding use of wireless devices has made the need for more spectrum increasingly dire. As the holiday shopping season has kicked off, in which consumer electronics account for half of all purchases, spectrum-hungry tablets and smartphones have been among the most popular products. These hot products underscore the need for more spectrum, and we commend Chairman Walden for this legislation."

12/1. The Federal Communications Commission (FCC) released a document [157 pages PDF scan in 20 MB] titled "Staff Analysis and Findings" in its proceeding on the proposed merger of AT&T and T-Mobile USA, WT Docket No. 11-65.

Rick Kaplan, Chief of the FCC's Wireless Telecommunications Bureau (WTB) issued an Order [4 pages in PDF] on November 29 that granted AT&T's and Deutsch Telekom's request to withdraw all applications associated with the proposed merger. See, story titled "FCC Staff Releases Items in AT&T T-Mobile Merger Proceeding" in TLJ Daily E-Mail Alert No. 2,315, November 29, 2011.

The Commission has not adopted this 157 page report. Nor is it scheduled to consider it. Nor has the Commission made any decision to approve or deny any applications associated with the proposed merger. Rather, this is a pre-decisional staff report.

Jim Cicconi, AT&T's Senior Executive Vice President of External & Legislative Affairs, wrote a criticism. He argued that "The decision to issue such a report that has no legal status, without a vote of the Commission, and in a proceeding that has been withdrawn, was also without precedent, and underscores that this was intended more for advocacy and to impact public perceptions. And neither is a proper basis for action by a regulatory agency."

He argued that the document "is so obviously one-sided that any fair-minded person reading it is left with the clear impression that it is an advocacy piece, and not a considered analysis".

Cicconi wrote that the document "raises questions as to whether its authors were predisposed. The report cherry-picks facts to support its views, and ignores facts that don't. Where facts were lacking, the report speculates, with no basis, and then treats its own speculations as if they were fact. This is clearly not the fair and objective analysis to which any party is entitled, and which we have every right to expect."

"All any company can properly ask when they present a matter to the government is a fair hearing and objective treatment based on factual findings. The FCC's report makes clear that neither occurred on our merger, at least within the pages of this report."

For example, Cicconi wrote that the "report states, based purely on speculation, that AT&T will expand its LTE deployment from 80% of the population to 97.4% even without the merger. The report says this will occur because AT&T will be forced to do so by competition, despite documents and sworn declarations by AT&T to the contrary.  To argue this, the report apparently assumes a high enough level of competition exists in rural areas to compel billions of dollars in investment. Yet the report elsewhere argues that the level of wireless competition in more populated areas of America is so fragile that the merger must be disallowed. At the very least, these conclusions show a logical inconsistency."

He also wrote that "the report barely mentions any spectrum issue, much less the spectrum crisis previously identified by the FCC, although that is the primary reason driving AT&T’s need for this merger."

Also, "The report's competitive analysis willfully ignores critical facts about the wireless market, and distorts the evidence presented".

In response to Cicconi, the Free Press's Derek Turner stated in a release that the "report is a detailed account of the evidence submitted by AT&T, and it is laughable for AT&T to call it an advocacy piece". He accused AT&T of whining.

11/29. Rep. Ed Markey (D-MA) commented on Amazon and its new Kindle Fire tablet. He released his correspondence with Amazon, and stated that he wants more information, and will follow up.

However, while Rep. Markey has raised concerns and asked questions, he has not criticized any of Amazon's business practices, or called for any responsive regulatory action or legislation.

Amazon provides an electronic device (the Kindle Fire), an internet browser on that device (the Amazon cloud accelerated Silk), and a wide range of web based services, including online sales of physical and digital products, media streaming, cloud computing, and e-books.

Rep. Markey's concerns are related to the circumstances that Amazon's device and browser are bundled, and that communications between the device and web sites are routed through Amazon's cloud.

Rep. Markey sent a letter to Amazon on October 14. He stated in an October 14 release that "As the use of mobile devices, especially tablets, becomes ubiquitous, we must ensure that user privacy is protected and proper safeguards are in place so that consumers know if and when their personal information is being used and for what purpose."

Rep. Markey wrote that his concern is that by "coupling Fire with Silk, Amazon can essentially track each and every Web click of its customers. Amazon will know where people shop, what items they buy, when they buy them, and how much they pay."

He asked "What information does Amazon plan to collect about users of Kindle Fire?" He also asked how it intends to use this information, and will it sell or share information with other companies.

Amazon's Paul Misener responded in a letter to Rep. Markey on November 3. He wrote that "Amazon Silk logs aggregate browsing information -- the logs are not associated with customer identities." He added that "Silk will only aggregate browsing activity across all users. It will not link browsing activity to individual customers' browsing habits."

Regarding "customer information", Misener stated that "We do not sell (or rent) the information to others and do not have plans to do so." (Parentheses in original.)

Rep. Markey published this letter in his web site on November 29. He stated in a release on November 29 that "Amazon's responses to my inquiries do not provide enough detail about how the company intends to use customer information, beyond acknowledging that the company uses this valuable information". Rep. Markey added that "I plan to follow-up with the company for additional answers on this issue".

The House will meet at 9:00 AM for legislative business. The House will consider HR 527 [LOC | WW], the "Regulatory Flexibility Improvements Act of 2011", and HR 3010 [LOC | WW], the "Regulatory Accountability Act of 2011". See, Rep. Cantor's schedule for the week.

The Senate will not meet.

Supreme Court conference day. See, calendar. Closed.

5:00 PM. Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding its draft Special Publication 500-293 [32 pages in PDF] titled "US Government Cloud Computing Technology Roadmap, Release 1.0". See, notice in the Federal Register, Vol. 76, No. 211, Tuesday, November 1, 2011, at Pages 67418-67419.

Deadline to submit comments to the Department of Homeland Security (DHS) in response to its notice in the Federal Register (FR) that announces, describes, and recites proposed rules regarding its system of records involving collection and use debit and credit card data for civil, criminal and intelligence purposes. The DHS proposes to exempt portions of this system of records from one or more provisions of the Privacy Act. See, FR, Vol. 76, No. 212, Wednesday, November 2, 2011, at Pages 67621-67622.

The Senate will meet at 2:00 PM.

10:00 - 11:30 PM. The Information Technology and Innovation Foundation (ITIF) will host an panel discussion titled "America's Competitiveness Crisis and the Anemic Job Recovery". The speakers will be Lenny Mendonca (McKinsey Global Institute), George Tassey (NIST), and Robert Atkinson (ITIF). See, notice. Location: ITIF/ITIC, Suite 610A, 1101 K St., NW.

6:00 - 9:15 PM. The DC Bar Association will host an event titled "IP Year In Review Series 2011: Copyright and Trademark Update". The speakers will be Amy Benjamin (Stein McEwen) and Terence Ross (Crowell & Moring). See, notice. The price to attend ranges from $89 to $129. CLE credits. For more information, call 202-626-3488. Location: DC Bar Conference Center, 1101 K St., NW.

7:00 PM. The Intellectual Property Owners Association will host a reception and dinner titled "2011 IPO Education Foundation Awards Dinner". The speakers will include David Kappos, head of the U.S. Patent and Trademark Office (USPTO). Location: 8th and G St., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [60 pages in PDF] regarding its review process for foreign ownership of wireless companies. The FCC adopted and released this NPRM on August 9, 2011. It is FCC 11-121 in IB Docket No. 11-133. See, story titled "FCC Issues Foreign Ownership NPRM" in TLJ Daily E-Mail Alert No. 2,285, August 10, 2011. See, Federal Register, Vol. 76, No. 204, Friday, October 21, 2011, at Pages 65472-65485.

Deadline for Facebook to respond to the November 10, 2011, letter from Rep. Joe Barton (R-TX) and Rep. Ed Markey (D-MA) in which they inquired about Facebook's patent application filed on February 8, 2011 for a method of "tracking information about activities of users of social networking system while on another domain".

10:00 AM. The House Homeland Security Committee's (HHSC) Subcommittee on Cybersecurity, Infrastructure Protection and Security Technologies will hold a hearing titled "Draft Legislative Proposal on Cybersecurity". See, notice. Location: Room 311, Cannon Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Access to the Court: Televising the Supreme Court". See, notice. The SJC will webcast this event. Location: Room 226, Dirksen Building.

POSTPONED 10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Crime, Terrorism and Homeland Security will hold a hearing on HR 1823, the "__". See, notice. Location: Room 2147, Rayburn Bulding.

2:00 PM. The House Homeland Security Committee's (HHSC) Subcommittee on Counterterrorism and Intelligence will hold a hearing titled "Jihadist Use of Social Media -- How to Prevent Terrorism and Preserve Innovation". See, notice. Location: Room 311, Cannon Building.

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Intellectual Property, Competition and the Internet will hold a hearing titled "Oversight of the Antitrust Enforcement Agencies". See, notice. Location: Room 2141, Rayburn Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Reauthorizing the EB-5 Regional Center Program: Promoting Job Creation and Economic Development in American Communities". This pertains to immigrant investor regional centers. See, notice. See also, 8 U.S.C. § 1153(b)(5). The SJC will webcast this event. Location: Room 226, Dirksen Building.

10:00 AM. The Supreme Court will hear oral argument in Mayo Collective Services v. Prometheus Laboratories, Sup. Ct. No. 10-1150, a petition for writ of certiorari to the U.S. Court of Appeals (FedCir). The question presented is "Whether 35 U.S.C. § 101 is satisfied by a patent claim that covers observed correlations between blood test results and patient health, so that the claim effectively preempts all uses of the naturally occurring correlations, simply because well-known methods used to administer prescription drugs and test blood may involve "transformations" of body chemistry." See, December 17, 2010 opinion of the Court of Appeals.

12:00 NOON - 1:30 PM. The American Bar Association (ABA) will host a webcast panel discussion titled "Covering Your Assets: How to Protect and Leverage Your Pro Bono Client's IP". The speakers will be Peter Strand (Leavens Strand Glover & Adler), Marci Rolnik (Lawyers for the Creative Arts), and Judy Tint. . See, notice. Prices vary. CLE credits.

2:30 PM. The Senate Judiciary Committee (SJC) will hold hearing on the nomination of Paul Watford to be a Judge of the U.S. Court of Appeals (9thCir). See, notice. The SJC will webcast this event.  Location: Room 226, Dirksen Building.

9:30 AM. The House Judiciary Committee (HJC) Subcommittee on Intellectual Property, Competition and the Internet will hold a hearing titled "Oversight Hearing on the United States Department of Justice". See, notice. Location: Room 2141, Rayburn Building.

10:00 AM. The House Intelligence Committee (HIC) will hold a hearing titled "Ongoing Intelligence Activities". See, notice. Location: Room HVC-304, Capitol Visitor Center.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda lists consideration of S 678 [LOC | WW], the "Economic Espionage Penalty Enhancement Act", and the nomination of Kathryn Keneally to be Assistant Attorney General in charge of the Department of Justice's (DOJ) Tax Division. See, notice. The SJC will webcast this event. Location: Room 226, Dirksen Building.

Deadline to submit objections to the Copyright Office (CO) to the newly designated television stations entitled to specialty station status under the cable statutory license. See, notice in the Federal Register, Vol. 76, No. 216 Tuesday, November 8, 2011, at Pages 69289-69290.

Supreme Court conference day. See, calendar. Closed.

12/1. The Senate Judiciary Committee (SJC) approved by voice votes the nominations of Jacqueline Nguyen (to be a Judge of the U.S. Court of Appeals for the 9th Circuit), Gregg Costa (U.S. District Court for the Southern District of Texas), and David Guaderrama (USDC, Western District of Texas).

12/1. The Senate Judiciary Committee (SJC) held an executive business meeting at which it held over consideration of the nomination of Kathryn Keneally to be Assistant Attorney General in charge of the Department of Justice's (DOJ) Tax Division. Her nomination is again on the agenda for the SJC's meeting of December 8. See, notice.

11/28. The Senate confirmed Christopher Droney to be a Judge of the U.S. Court of Appeals (2ndCir) by a vote of 88-0. See, Roll Call No. 209. See also, story titled "Obama Nominates Droney for 2nd Circuit" in TLJ Daily E-Mail Alert No. 2,233, May 5, 2011.

11/15. Arthur Levinson was named non-executive Chairman of the Board of Directors of Apple. He has been a Director since 2005. Apple also named Robert Iger, P/CEO of The Walt Disney Company, to the Board of Directors of Apple. See, Apple release.

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