3/6. The House Commerce Committee (HCC) amended and approved two bills, HR 3309 [LOC | WW], the "Federal Communications Commission Process Reform Act of 2011", and HR 3310 [LOC | WW], the "Federal Communications Commission Consolidated Reporting Act of 2011".

The HCC approved HR 3309, the FCC Process Reform Act, by a vote of 31-16. It was a nearly straight party line vote. Republicans voted for the bill. All but two Democrats voted against the bill -- Rep. Jim Matheson (D-UT) and Rep. John Barrow (D-GA). See, Roll Call. The HCC then approved HR 3310 by voice vote.

HR 3309 is a huge and complex bill that pertains to decision making processes at the Federal Communications Commission (FCC), including for rulemaking proceedings, antitrust merger reviews, and other adjudications. The bill contains numerous provisions that would increase transparency. However, it leaves untouched many practices that decrease transparency. Also, it would decrease transparency by allowing Commissioners to meet in secret.

HR 3310 is a shorter bill with broader support that would consolidate eight separate reports on the communications marketplace into a single report, eliminate several reporting requirements, and make modifications to reporting requirements.

Legislative History. The HCC held a hearing on May 13, 2011, at which it heard testimony from FCC Commissioners on FCC reform. See, HCC web page with hyperlinks to prepared testimony and archived webcast.

The HCC then released a discussion draft on June 14, 2011, of FCC reform legislation. The HCC then held a second hearing on June 23, 2011, for outside witnesses. See, HCC web page with hyperlinks to prepared testimony and archived webcast.

Rep. Greg Walden (R-OR), the Chairman of the HCC's Subcommittee on Communications and Technology (SCT) introduced HR 3309 on November 2, 2011. The bill has nine cosponsors. All are Republicans: Rep. Joe Barton (R-TX), Rep. Charles Bass (R-NH), Rep. Marsha Blackburn (R-TN), Rep. Adam Kinzinger (R-IL), Rep. John Kline (R-MN), Rep. Robert Latta (R-OH), Rep. Steve Scalise (R-LA), Rep. Cliff Stearns (R-FL), and Rep. Lee Terry (R-NE).

Rep. Scalise introduced HR 3310 on November 2, 2011.

The HCC/SCT approved HR 3309 and HR 3310 on November 29, 2011.

Debate at March 5-6 Mark Up. The HCC meet on March 5 for opening statements of members. It met on March 6 to consider amendments, and vote on passage.

Rep. Fred Upton (R-MI), the Chairman of the HCC, stated that the FCC's "practices should be open and accountable". See, opening statement, which he read.

Rep. Henry Waxman (D-CA), the ranking Democrat on the HCC, stated that HR 3309 is "destined to die in the Senate". Rep. John Dingell (D-MI) suggested that President Obama might veto this bill if the Senate were to pass it.

Rep. Waxman stated that HR 3309 "it would disable the FCC, not reform it". Rep. Dingell said that the FCC "very much needs reform", but these bills would "cripple" it. He later that the FCC is "a sorry agency" because there has been a succession of "sorry" chairmen who have mismanaged the agency. He predicted that this bill would produce years of litigation, and much income for lawyers.

However, Rep. Waxman and other Democrats praised the provision of HR 3309 that allows FCC Commissioners to meet in secret.

Rep. Cliff Stearns (R-FL) praised the two bills, and condemned FCC "regulatory uncertainty" that inhibits investment, and its backlogs and delays. Rep. Lee Terry (R-NE) said that HR 3309 will "assure openness and transparency for the public".

Rep. Doris Matsui (D-CA) said that the FCC is in need of reform, but that HR 3309 is "a blatant overreach that would severely tie the hands of the FCC".

Rep. Walden stated that these two bills are about "Bringing transparency and accountability" to the FCC. See, prepared statement.

Rep. Walden wrote that "This is the agency that filed more than a hundred documents, spanning thousands of pages, in the weeks before the record closed in its Universal Service Fund proceeding -- some submitted just two days before that record closed. This is the agency that had a backlog of 4,984 petitions, 3,950 license applications, and more than a million consumer complaints at the end of last year. This is the agency that hasn’t produced an annual satellite competition report or an annual video competition report in years, but claims that it doesn’t need to survey the industry before adopting new regulations for these providers. This is the agency that still hasn’t wrapped up its 2010 quadrennial review on media ownership."

"This legislation does not change the public interest standard that the FCC uses to approve or deny a merger. Period. If the FCC determines that a merger of two media companies is against the public interest, it can deny it. If that merger threatens competition, the FCC can adopt conditions to protect smaller competitors. If that merger threatens localism or a diversity of voices, the FCC can accept commitments tailored to protect these First Amendment values."

He added, "But I don't understand why anyone thinks the last-minute side deals the agency makes today are a good idea. The agency calls these side deals “voluntary commitments.” In my mind, they are anything-but-voluntary commitments."

Reaction. Walter McCormick, head of the USTelecom, commended the HCC in a release for approving these two bills. He added that "We hope today's action will be a stepping stone toward a broader initiative to update the nation's laws to reflect today's communications marketplace, and to help our nation meet its broadband investment, deployment and adoption goals."

Harold Feld of the Public Knowledge (PK) stated in a release that these these bills "would make a sham out of the principles which have guided our communications laws for the past 75 years. Instead of relying on a fundamental concept of the public’s interest, convenience and necessity in a rule, or in the approval of a transaction, the legislation instead defers to industry’s interest and convenience." He praised the bill's provision that would allow Commissioners to meet in secret.

3/6. The House Commerce Committee (HCC) amended and approved HR 3309 [LOC | WW], the "Federal Communications Commission Process Reform Act of 2011" on March 6, 2012. The following is an amendment by amendment summary of the mark up.

The HCC made several modest changes to the bill, rejected a Democratic amendment in the nature of a substitute that would have gutted the bill, and rejected an amendment that would have expanded the scope of the bill to cover political ads carried by FCC regulated entities.

The HCC approved by voice vote an amendment offered by Rep. Kinzinger that would prevent the FCC from delaying its publication of a certain notices in the Federal Register. This FCC tactic can delay judicial review of a final order of the FCC. Rep. Waxman spoke in favor. It was then adopted by unanimous voice vote.

The HCC approved by voice vote an amendment offered by Rep. Waxman regarding a consumer complaints database. This amendment provides that "In evaluating and processing consumer complaints, the Commission shall present information about such complaints in a publicly available, searchable database on its website ..." Rep. Upton and Rep. Walden spoke in favor. It was then adopted by unanimous voice vote.

The HCC approved by voice vote an amendment offered by Rep. Mike Pompeo (R-KS) regarding FCC reporting of Telephone Consumer Protection Act (TCPA) complaints. It would require the FCC to separate out TCPA complaints about telemarketers.

It states that "In compiling its quarterly report with respect to informal consumer inquiries and complaints, the Federal Communications Commission may not categorize an inquiry or complaint with respect to section 227 of the Communications Act of 1934 (47 U.S.C. 227) as being a wireline inquiry or complaint or a wireless inquiry or complaint unless the party whose conduct is the subject of the inquiry or complaint is a wireline carrier or a wireless carrier, respectively."

Rep. Anna Eshoo (D-CA) spoke in favor. It was then adopted by unanimous voice vote.

The HCC rejected on a roll call vote of 18-32 an amendment in the nature of a substitute offered by Rep. Eshoo. It would have deleted the content of HR 3309 as offered, and replaced it with language allowing FCC Commissioners to meet in secret, and directing the FCC to "consider procedural changes to its rules to maximize opportunities for public participation and efficient decisionmaking".

Rep. Walden said that this amendment "guts" the bill, and opposed it. Rep. Waxman and Rep. Dingell spoke in support.

It was a nearly straight party line vote. All Republicans on the HCC voted, and voted no. Four Democrats did not vote. One voted no -- Rep. Jim Matheson (D-UT).

The HCC rejected on a roll call vote of 16-30 an amendment offered by Rep. Eshoo that would have required the FCC to require broadcast licensees, cable operators, and direct broadcast service (DBS) providers to obtain and disclose information regarding who pays for sponsored political programming.

The Federal Election Commission (FEC) has statutory authority to regulate federal political contributions, spending and reporting. This amendment would have leveraged the FCC's authority to regulate broadcast, cable and DBS providers to engage in FCC based campaign regulation. It would have required these FCC regulated companies to collect from entities that sponsor political ads data regarding their donors, and disclose certain information to the FCC, which would then disclose it to the public.

Several Republicans argued that this bill pertains to FCC reform, but that this amendment does not.

Rep. John Shimkus (R-IL) questioned whether this amendment would violate the First Amendment free speech rights. He also suggested that this issue is a matter for another Committee.

It was a nearly straight party line vote. All Republicans who voted voted no; two missed the vote. Six Democrats also missed the vote. One voted no -- Rep. John Barrow (D-GA). The rest of the Democrats voted yes.

Rep. Stearns offered and then withdrew an amendment that would have allowed each FCC Commissioner to hire an engineer. Rep. Eshoo expressed her support for the amendment. See also, HR 2102 [LOC | WW], the "FCC Commissioners' Technical Resource Enhancement Act ", sponsored by Rep. Stearns, and S 611, sponsored by Sen. Olympia Snowe (R-ME).

Del. Donna Christensen (D-VI) offered and then withdrew an amendment that would have provided that "To the extent that any provision of this Act or the amendment made by this Act conflicts with title 5, United States Code, such title shall control, except where otherwise expressly provided."

3/6. The House Commerce Committee (HCC) amended and approved HR 3309 [LOC | WW], the "Federal Communications Commission Process Reform Act of 2011" on March 6, 2012. The following is an summary of the key provisions of the bill.

HR 3309 is a huge and complex bill that pertains to decision making processes at the Federal Communications Commission (FCC), including for rulemaking proceedings, antitrust merger reviews, and other adjudications. The bill contains numerous provisions that would increase transparency. However, it leaves untouched many practices that decrease transparency. Also, it would decrease transparency by allowing Commissioners to meet in secret.

This bill would require the FCC to survey the marketplace before initiating a new rulemaking, with exceptions for deregulatory rulemakings and for good cause.

It would require that Notice of Proposed Rulemakings (NPRMs) follow within three years of Notice of Inquiries (NOIs). It would require that NPRMs include the text of proposed rules. It would require that NPRMs allow at least 30 days each for initial comments and reply comments.

It would also require that adopted rules follow within three years of NPRMs and be a logical outgrowth of the proposed rules. The bill would require that "the specific language of the adopted rule or the amendment of an existing rule is a logical outgrowth of the specific language of a proposed rule or a proposed amendment of an existing rule included in a notice of proposed rulemaking".

It would require that for rulemaking proceedings that adopt rules that will have an annual effect of $100 Million or more on the economy the FCC must identify the problem it is trying to solve and make a reasoned determination that the benefits of the adopted rule justify its costs. It would also require the FCC to develop performance measures for its program activities, defined as each program of the FCC listed in the federal budget as well as each program through which the FCC collects or distributes $100 Million or more.

It would requires the FCC to establish internal procedures to inform Commissioners of a reasonable number of options available for resolving a proceeding, to provide adequate time for Commissioners to deliberate pending orders, and to ensure time for the public to read orders before open meetings.

It would allow Commissioners to meet in secret, rather than in public meetings. It would permit a bipartisan majority of Commissioners to meet if they disclose such meetings within two business days. However, the disclosure need only contain "a list of the persons who attended such meeting" and "a summary of the matters discussed".

The five Commissioners conduct little business in public. Meeting titled "Open Meeting" are largely ceremonial; Commissioners read statements, and hold votes. Currently, Commissioners communicate away from public view via their staffs. This bill would authorize another secretive process.

This bill contains only a minimal disclosure requirement for closed Commission meetings. Similarly, the bill does not address the the FCC's current ex parte communications process, except to provide that the FCC must establish procedures that provide the public an opportunity to evaluate ex parte filings before the FCC may rely on them.

For example, the bill does nothing to increase the disclosure of ex parte communications, such requiring parties making ex parte in person communications to release of audio and/or video of ex parte meetings. Similarly, the bill imposes no disclosure requirements with regard to ex parte Congressional communications.

The bill would require the FCC to establish procedures to allow a bipartisan majority of Commissioners to direct staff to draft an order, to put such an order on the FCC's agenda, and to require that the FCC vote on any order.

It would require the FCC to seek public comment on reports.

It would require the FCC to establish rules regarding the publication of the status of open rulemaking proceedings, and a list of the draft items the Commissioners are currently considering.

It would require the FCC to establish shot clocks that set time frames for FCC action in each type of proceeding it oversees.

It would require the FCC to establish a schedule for the release of its required reports.

It would require the FCC to release all orders within seven days of adoption. The bill provides that the FCC "shall publish each order, decision, report, or action not later than 7 days after the date of the adoption of such order, decision, report, or action". The FCC often votes to adopt an order or other item when in fact the only document in existence is a news release.

It would require the FCC to report every six months regarding its progress in meeting its shot clocks as well as how it has used administrative law judges and independent studies.

It would require that in FCC license transfer proceedings, including antitrust merger reviews, conditions imposed by the FCC, including those deemed voluntary by the FCC, must be "narrowly tailored to remedy a harm that arises as a direct result of the specific transfer or specific transaction that this Act empowers the Commission to review".

Moreover, such conditions can be imposed only if the FCC "could impose a similar requirement under the authority of a specific provision of law other than a provision empowering the Commission to review a transfer".

Since the FCC began conducting antitrust merger reviews shortly after enactment of the Telecommunications Act of 1996, it has imposed many conditions upon the merged entities that would not meet this requirement.

The House will meet at 12:00 NOON for morning hour, and at 2:00 PM for legislative business. Votes will be postponed until 6:30 PM. The House will consider several non-technology related items under suspension of the rules. See, Rep. Cantor's schedule for the week.

10:00 - 11:00 AM. There will be a news conference to release and discuss a report titled "The Financial Impact of Breached Protected Health Information: A Business Case for Enhanced PHI Security". The speakers will be Joe Bhatia (American National Standards Institute), Catherine Allen (Santa Fe Group), Larry Clinton (Internet Security Alliance), Rick Kam (ID Experts), James Pyles (Powers Pyles Sutter & Verville), Lynda Martel (DriveSavers Data Recovery), Mary Chaput (Clearwater Compliance). Location: First Amendment Room, National Press Club, 13th Floor, 529 14th St.,  NW.

3:00 PM. The House Appropriations Committee's (HAC) Financial Services and General Government will hold a hearing on the FY 2013 budget for the Federal Trade Commission (FTC). The witnesses will be FTC Chairman Jon Leibowitz. See, notice. Location: Room 2359, Rayburn Building.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice in the Federal Register regarding proposed changes to its rules of practice to implement the provisions of Section 6 of HR 1249 [LOC | WW], the "Leahy Smith America Invents Act", regarding post patent review provisions. President Obama signed this Act into law on September 16, 2011. It is Public Law No. 112-29. See, Federal Register, Vol. 77, No. 3, Thursday, January 5, 2012, at Pages 442-448.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice in the Federal Register regarding proposed changes to its rules of practice to implement the provisions of Section 8 of HR 1249 [LOC | WW], the "Leahy-Smith America Invents Act", which amends 35 U.S.C. § 122 regarding pre patent issuance submissions by third parties. This amendment provides a mechanism for third parties to submit to the USPTO, for consideration and inclusion in the record of a patent application, any patents, published patent applications, or other printed publications of potential relevance to the examination of the application. President Obama signed this Act into law on September 16, 2011. It is Public Law No. 112-29. See, Federal Register, Vol. 77, No. 3, Thursday, January 5, 2012, at Pages 448-457.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice in the Federal Register regarding proposed changes to its rules of practice to implement the provisions of Section 32 of HR 1249 [LOC | WW], the "Leahy-Smith America Invents Act", regarding USPTO disciplinary proceedings against any person, agent, or attorney who fails to comply with USPTO regulations. President Obama signed this Act into law on September 16, 2011. It is Public Law No. 112-29. See, Federal Register, Vol. 77, No. 3, Thursday, January 5, 2012, at Pages 457-461.

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. See, Rep. Cantor's schedule for the week.

10:00 AM. The House Appropriations Committee's (HAC) Subcommitte on Financial Services and General Government will hold a hearing on the FY 2013 budget for the Securities and Exchange Commission (SEC). The witnesses will be SEC Chairman Mary Schapiro. See, notice. Location: Room 2359, Rayburn Building.

10:00 AM. The House Commerce Committee (HCC) will meet to mark up HR 3309 [LOC | WW], the "Federal Communications Commission Process Reform Act of 2011", and HR 3310 [LOC | WW], the "Federal Communications Commission Consolidated Reporting Act of 2011". Location: Room 2123, Rayburn Building.

11:00 AM. The House Science Committee's (HSC) Subcommittee on Technology and Innovation will hold a heading titled "Overview of the National Institute of Standards and Technology Budget for Fiscal Year 2013". The HSC will webcast this event. Location: Room 2318, Rayburn Building.

2:30 PM. The Senate Commerce Committee (SCC) will hold a hearing titled "Keeping America Competitive Through Investments in R&D". See, notice. Location: Room 253, Russell Building.

2:30 PM. The Senate Intelligence Committee (SIC) will hold a closed meeting. See, notice. Location: Room 219, Hart Building.

3:00 PM. The House Rules Committee (HRC) will meet to adopt a rule for consideration of HR 3606  [LOC | WW], the "Reopening American Capital Markets to Emerging Growth Companies Act of 2011". See, HRC notice and story titled "House Financial Services Committee to Mark Up Bill to Provide Regulatory Relief to Emerging Growth Companies" in TLJ Daily E-Mail Alert No. 2,336, February 14, 2012. Location: Room H313, Capitol Building.

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. See, Rep. Cantor's schedule for the week. The House will begin consideration of HR 3606  [LOC | WW], the "Reopening American Capital Markets to Emerging Growth Companies Act of 2011". See, story titled "House Financial Services Committee to Mark Up Bill to Provide Regulatory Relief to Emerging Growth Companies" in TLJ Daily E-Mail Alert No. 2,336, February 14, 2012.

8:30 AM - 12:00 NOON. The National Aeronautics and Space Administration's (NASA) NASA Advisory Council's Information Technology Infrastructure Committee will meet. See, notice in the Federal Register, Vol. 77, No. 27, Thursday, February 9, 2012, at Page 6825. Location: NASA, 300 E. St., SW.

9:00 AM. The House Appropriations Committee's (HAC) Subcommittee on Commerce, Justice, Science, and Related Agencies will hold a hearing on the FY 2013 budget for the Department of Justice (DOJ). The witness will be Robert Mueller (FBI Director) See, notice. Location: Room 2359, Rayburn Building.

10:00 AM. The House Foreign Affairs Committee (HFAC) will meet to mark up several bills, including HR 4041, the "Export Promotion Reform Act", and SConRes 17, a resolution that expresses the sense of Congress that Taiwan should be accorded observer status in the International Civil Aviation Organization (ICAO). See, notice. Location: Room 2172, Rayburn Building.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Subcommittee on Communications and Technology will hold a hearing titled "Cybersecurity: The Pivotal Role of Communications Networks". The witnesses will be Edward Amoroso (AT&T), David Mahon (Century Link), Jason Livingood (Comcast), John Olsen (MetroPCS Communications), and Scott Totzke (Blackberry Security Group, Research In Motion). See, notice. Location: Room 2123, Rayburn Building.

10:00 AM. The Senate Finance Committee (SFC) will hold a hearing titled "The President’s 2012 Trade Agenda". The witness will be Ron Kirk (U.S. Trade Representative). See, notice. Location: Room 215, Dirksen Building.

12:15 - 1:45 PM. The Federal Communications Bar Association (FCBA) will host a brown bag lunch titled "TV Whitespace". For more information, contact Scott Goodwin at sgoodwin at nab dot org. Location: National Association of Broadcasters (NAB), 1771 N St., NW.

2:00 - 3:30 PM. The Department of Justice's (DOJ) Antitrust Division will host a presentation titled "Market Thickness and Market Efficiency in Dynamic Auctions". The speaker will be Alan Sorensen (University of Wisconsin) author of a paper with the same title. For more information, contact Thomas Jeitschko at 202-532-4826 or atr dot eag at usdoj dot gov. Location: Liberty Square Building, 450 5th St., NW.

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business.  See, Rep. Cantor's schedule for the week. The House will continue its consideration of HR 3606 [LOC | WW], the "Reopening American Capital Markets to Emerging Growth Companies Act of 2011". See, story titled "House Financial Services Committee to Mark Up Bill to Provide Regulatory Relief to Emerging Growth Companies" in TLJ Daily E-Mail Alert No. 2,336, February 14, 2012.

9:00 AM. The House Intelligence Committee (HCC) will hold a brief open event titled "Committee Views and Estimates on the President's Budget for Fiscal Year 2013". See, notice. Location: Room HVC-304, Capitol Visitor Center.

9:15 AM. The House Intelligence Committee (HCC) will hold a closed hearing titled "Ongoing Intelligence Activities". See, notice. Location: Room HVC-304, Capitol Visitor Center.

9:00 - 10:30 AM. The Information Technology and Innovation Foundation (ITIF) and the Kaufman Foundation will host an event to release a report titled "The Global Innovation Policy Index". The speakers will be Robert Atkinson (ITIF), Philip Auerswald (Kaufman Foundation), Thomas Kalil (EOP's OSTP), Eric Miller (Industry Canada), and Steven Stewart (IBM). See, notice. Location: ITIF/ITIC: Suite 610, 1101 K St., NW.

10:00 AM. The Senate Appropriations Committee (SAC) will hold a hearing on the FY 2013 budget for the Department of Justice (DOJ). The witness will be Attorney General Eric Holder. See, notice. Location: Room 124, Dirksen Building.

10:00 AM - 12:00 NOON. The House Science Committee's (HSC) Subcommittee on Research and Science Education will hold a hearing titled "NSF Major Research Equipment and Facilities Management". The HSC will webcast this event. Location: Room 2318, Rayburn Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda includes consideration of Patty Shwartz (to be a Judge of the U.S. Court of Appeals for the 3rd Circuit), Jeffrey Helmick (USDC/NDOhio), Mary Lewis (USDC/DSCar), and Timothy Hillman (USDC/DMass). The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

2:30 PM. The Senate Intelligence Committee (SIC) will hold a closed meeting. See, notice. Location: Room 219, Hart Building.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Public Notice (PN) [21 pages in PDF] regarding Auction 901, which will auction high cost universal service subsidies through reverse competitive bidding. It is also titled "Mobility Fund Phase I Auction". The FCC released this PN on February 2, 2012. It is DA 12-121 in AU Docket No. 12-25. See also, notice in the Federal Register, Vol. 77, No. 28, Friday, February 10, 2012, at Pages 7152-7162.

The House will not meet the week of Monday, March 12, through Friday, March 16.

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