3/27. The House passed the HR 3309 [LOC | WW], the "Federal Communications Commission Process Reform Act of 2012". The vote on final passage was 247-174. See, Roll Call No. 138. Republicans voted 235-0. Democrats vote 12-174.

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. It adds a new Section 13 to the Communications Act of 1934. 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.

The Senate with a Democratic majority, and Sen. John Rockefeller (D-WV) as Chairman of the Senate Commerce Committee (SCC), is unlikely to take any action on this bill. Whether a Republican Senate in the future might is another matter.

This article covers the legislative history of the bill, the debate in the House on March 27, and reaction to House passage. See also, related stories in this issue:

• Summary of Amendments to HR 3309 Approved or Rejected by the House
• House Rejects Amendment Regarding Warning Labels for Surveillance Risks
• House Rejects Amendment Regarding Regulation of Political Speech
• House Rejects Motion Pertaining to Employer Demands for Employee Passwords for Social Networking Sites
• Summary of HR 3309 As Passed by the House
• Commentary: FCC as an Agent of the Congress

Legislative History. The House process in passing this bill has long, open and methodical. The House Commerce Committee (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. The HCC 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 this bill on November 2, 2011.

The HCC's SCT amended and approved the bill on November 9, 2011. The full HCC held a mark up session on March 6, 2012. See, stories titled "House Commerce Committee Approves FCC Reform Bills", "Amendment by Amendment Summary of Mark Up of HR 3309", and "Summary of HR 3309, the FCC Process Reform Act " in TLJ Daily E-Mail Alert No. 2,346, March 5, 2012.

On March 26 the House Rules Committee (HRC) adopted a rule for consideration of HR 3309 that made in order numerous amendments offered by Democrats.

The full House amended and passed this bill on March 27, 2012. The vote was a nearly straight party line vote. No Republicans voted against the bill. Only 12 Democrats voted for it: Rep. John Barrow (D-GA), Rep. Dan Boren (D-OK), Rep. Henry Cueller (D-TX), Rep. Joe Donnelly (D-IN), Rep. Kathy Hochul (D-NY), Rep. Jim Matheson (D-UT), Rep. Mike McIntyre (D-NC), Rep. William Owens (D-NY), Rep. Colin Peterson (D-MN), Rep. Mike Ross (D-AR), Rep. Kurt Schrader (D-OR), and Rep. Heath Shuler (D-NC).

Floor Debate. Rep. Walden stated in the House that "Communications and technology companies and the public deserve a more transparent and responsive government agency, and that's exactly what the legislation before us now would accomplish, bringing transparency, bringing accountability to the" FCC.

Rep. John Dingell (D-MI), a senior member of the HCC, and a former Chairman, spoke in the House in opposition to the bill. He complained that it "would take the FCC outside of the Administrative Procedure Act and make it subject to a unique set of procedural requirements", and that this "will bring disastrous results". He added that this is a "silly bill" that has "no future in the Senate".

Rep. Henry Waxman (D-CA), the ranking Democrat on the HCC stated in the House that "This bill would not reform the FCC. It would disable it."

Rep. Dan Webster (R-FL) stated in the House that this bill "would change the process the FCC must follow in issuing regulations and limit the agency's ability to set conditions on transactions relating to corporate mergers and acquisitions."

Rep. Webster (at left), who is a member of the HRC, said that the bill "would require the FCC to be more transparent and methodical in determining whether to intervene in the communications marketplace in dealing with customers and regulated parties, and in reviewing transactions."

Also, "Before it starts intervening, the FCC should make sure it has a full understanding of the state of competition and current technologies. By requiring the FCC to be more transparent, to find a market failure before proposing regulations, and to conduct cost-benefit analyses before adopting rules, H.R. 3309 helps promote jobs, investment, and innovation in one of the few sectors still firing on all cylinders in this economy."

"In particular, the bill prohibits the FCC from coercing parties to accept concessions, such as network neutrality obligations, as a condition of approving their mergers. Such conditions are typically unrelated to the specifics of the transaction and involve requirements the FCC otherwise lacks the policy justification or legal authority to impose. They also chill transactions that might otherwise advance the economy, and impose unnecessary costs on businesses."

Rep. Webster added that "The bill requires the FCC to survey the marketplace through a notice of inquiry before proposing new rules that would increase costs for customers and businesses; to establish the specific text of proposed rules before their consideration so the public and industry know what is being considered and have adequate information to provide input, much as House leadership has adopted in the layover requirement for the bills that we now hear on the floor; to identify a market failure or customer harm and conduct a cost-effective analysis before adopting economically significant rules that cost more than $100 million; to set the shot clock and schedules for issuing decisions and to report to Congress on how well it is abiding by them so the public and industry know when issues will be resolved; and to create performance measures to evaluate the effectiveness or ineffectiveness of a program that costs more than $100 million."

He concluded that "this legislation seeks to pull back the curtain on bureaucratic regulation of a sector of our economy that has provided high-tech innovation and investment, and the high-quality jobs that come with it, despite the economic down-turn."

Rep. Walden discussed the FCC's universal service proceeding. "Let me tell you part of the problem here. Last October, the agency introduced more than 100 new documents into the record of its universal service proceeding in the last few days of public comment. Giving the public as few as 2 days to comment on thousands of pages of new data isn't right."

He complained that the FCC makes decisions "in a clouded, behind-the-curtain sort of way."

He advocated the bill's shot clock provisions. He also discussed merger review procedure. "In recent years, the FCC has leveraged its authority to review transactions to accomplish unrelated policy goals and insulate its rulemakings from judicial review. Now, what does that mean? It does so through last-minute side deals with applicants that are often not disclosed until just a few days or even hours before the FCC approves a deal. One problem with these voluntary commitments is they're not voluntary."

"If you're trying to get the FCC to approve your transfer of license, the FCC, in recent years, has used that approval authority to go way beyond any statutory authority they have to issue rules in an area and they hold you hostage. Outside of the portals, we'd call it extortion", said Rep. Walden.

He also noted that some companies use this process to gain some advantage over other companies. He said that these companies "twist them at the FCC" to "get a little edge in the market".

Rep. Anna Eshoo (D-CA), the ranking Democrat on the HCC's SCT stated that "this bill guts" the FCC "requiring new onerous process requirements which will result in an Agency that's less effective, less agile, and less transparent".

Rep. Waxman (at right) argued that this bill "erects procedural hurdles that make it more difficult for the FCC to protect consumers. It strips the FCC of its power to ensure that mergers between telecommunications companies are in the public interest. If this bill is enacted, it would stymie the ability of the Agency to do much of anything except to produce reports for Congress."

He argued that the FCC should not have to publish the specific language of the proposed rule in every notice of proposed rulemaking.

He argued that this bill "alters fundamentally the way in which the FCC reviews transactions to ensure that they are in the public interest. Under current law, the FCC is directed to protect the public interest when reviewing proposed mergers. This bill would curtail this authority significantly. The bill strips the FCC of its authority to require merger conditions that promote broadband adoption, require minimum broadband speeds, require the repatriation of jobs from overseas, or ensure broadband coverage in rural or low-income areas."

He also argued that the bill gives "telephone, cable, or wireless companies vast new tools to tie the Agency up in litigation for years if they don't like what the Agency is doing. It does this by making all the regulatory analyses that accompany a regulation subject to judicial review." He added that "These lawsuits, which no other Agency in government would face, could effectively paralyze the FCC."

Finally, he predicted that this bill "will not go anywhere in the other body, will not become law".

Reaction. Michael Powell, head of the National Cable and Telecommunications (NCTA), stated in a release that this bill "will promote greater transparency and predictability in Commission decision making."

He added that "The regulatory framework envisioned by this reform legislation will ensure that private enterprise can continue to invest and innovate with more consistent and precise federal government oversight."

The National Association of Regulatory Utility Commissioners (NARUC) released a statement praising some of the provisions of the bill. "Importantly, the bill requires the FCC to release specific language in proposed rules for public comment within a reasonable timeframe. The legislation also makes the important work of our several Federal-State joint boards and conferences far more efficient, allowing us to address critical consumer issues in a more timely fashion."

Tim McKone of AT&T stated in a release that this bill is a "common-sense effort to reform current FCC practices, many of which predate the agency’s current leadership. Passage by the House is a needed step forward, and is also an important signal of support for modernizing telecom regulation. It has become increasingly clear that, for America to have the world-class broadband infrastructure it needs, all of us must rethink outmoded regulations and outdated mindsets."

Joel Kelsey of the Free Press stated in a release that this bill would "create irreversible long-term harm and tie the hands of a federal agency charged with overseeing an increasingly consolidated telecommunications industry".

3/27. The House passed HR 3309 [LOC | WW], the "Federal Communications Commission Process Reform Act of 2012", on March 27, 2012. The following is a summary of amendments considered by the House.

The House considered and rejected several items not related to Federal Communications Commission (FCC) process reform, but rather to substantive law.

Warning Labels for Surveillance Risks. The House rejected an amendment offered by Rep. Joseph Crowley (D-NY) regarding the surveillance risks associated with the use of baby monitors. It failed on a vote of 196-219. See, Roll Call No. 134. See also, related story in this issue titled "House Rejects Amendment Regarding Warning Labels for Surveillance Risks".

Disclosures Regarding Political Speech. The House rejected an amendment offered by Rep. Anna Eshoo (D-CA) regarding sponsored political programming. It failed by a vote of 179-238. See, Roll Call No. 135. See also, related story in this issue titled "House Rejects Amendment Regarding Regulation of Political Speech".

Employer Demands for Employee Social Media Passwords. The House rejected a motion to recommit the bill to the HCC with instructions to add an amendment related to social networking sites offered by Rep. Ed Perlmutter (D-CO). This House rejected this dilatory motion by a vote of 184-236. See, Roll Call No. 137. See also, related story in this issue titled "House Rejects Motion Pertaining to Employer Demands for Employee Passwords for Social Networking Sites".

The House also considered several amendments related to FCC process. It approved three -- regarding FCC processing of FOIA requests,  FCC process related to dangerous weather condition alerts, and FCC process related to first responders. The House rejected other amendments.

FOIA Requests. The House approved by voice vote an amendment offered by Rep. Greg Walden (R-OR), the Chairman of the HCC's Subcommittee on Communications and Technology (SCT), regarding requiring greater transparency in the processing of federal Freedom of Information Act (FOIA) requests by the FCC. This amendment does not amend the underlying FOIA, which is codified at 5 U.S.C. § 552.

Rural Broadband. The House rejected an amendment offered by Rep. Bill Owens (D-NY) regarding broadband access in rural areas by a vote of 194-222. See, Roll Call No. 136.

It would have added a new Section 4 titled "Broadband Access in Rural Areas", and provided that "Nothing in this Act (including the amendment made by section 2 of this Act) shall impede the Federal Communications Commission from implementing rules to ensure broadband access in rural areas." (Parentheses in original.)

Dangerous Weather Condition Alerts. The House approved by voice vote an amendment offered by Rep. Gene Green (D-TX) regarding dangerous weather condition alerts.

It adds a new Section 4 that provides that "Nothing in subsection (a) of section 13 of the Communications Act of 1934, as added by section 2 of this Act, shall be construed to impede the Federal Communications Commission from acting in times of emergency to ensure the availability of efficient and effective communications systems to alert the public to imminent dangerous weather conditions."

Delayed Effective Date. The House rejected by voice vote an amendment offered by Rep. Jackie Speier (D-CA) to prevent this Act from taking effect until the FCC provides a report on the impact of the changes of this bill on the competition and innovation.

It would have added a new Section 4 titled "Impact on Competition and Innovation", and provided that "This Act (including the amendment made by section 2 of this Act) shall not take effect until the Federal Communications Commission submits to Congress a report on the impact of this Act (and amendment) on the mandate of the Commission to promote competition and innovation." (Parentheses in original.)

The FCC has a history of not producing reports required by statute. Had this amendment been approved, it would have given the FCC the option of avoiding the requirements of this bill by simply not producing this report.

First Responders. The House approved an amendment offered by Rep. Anna Eshoo (D-CA), the ranking Democrat on the HCC's SCT, regarding the effect of this bill upon first responders.

It adds a new Section 4 titled "Communications of First Responders". This new section provides that "Nothing in this Act (including the amendment made by section 2 of this Act) shall impede the Federal Communications Commission from ensuring the availability of efficient and effective communications systems for State and local first responders." (Parentheses in original.)

Both Rep. Green's amendment and this amendment state that they add a new Section 4 to the bill. Hence, the bill as enacted by the House provides that this adds a new Section 5 to the bill.

3/27. During the House consideration of HR 3309 [LOC | WW], the "Federal Communications Commission Process Reform Act of 2012", the House rejected an amendment offered by Rep. Joseph Crowley (D-NY) not related to FCC reform, but rather to the surveillance risks associated with the use of baby monitors. It failed on a vote of 196-219. See, Roll Call No. 134.

Of all the items that failed, this one garnered the most votes, and the most Republican votes -- 19. Three Democrats voted no: Rep. Carolyn Maloney (D-NY), Rep. Mike Michaud (D-ME), and Rep. Jared Polis (D-CO).

This amendment provides that "in the case of the adoption of a rule or the amendment of an existing rule relating to baby monitors, such rule as adopted or amended requires the packaging of an analog baby monitor to display a warning label stating that sounds or images captured by the baby monitor may be easily viewed or heard by potential intruders outside a consumer's home".

Rep. Crowley (at right) stated in a release that "Parents use baby monitors to keep an eye on their children’s safety -- not to give potential intruders a window into their home. It is time to put a label on these products and make it crystal clear to parents that the devices are not private or secure."

Rep. Crowley has also introduced a stand alone bill, HR 1752 [LOC | WW], the "Keeping Children Safe Act of 2011", that would go further. It would require an FCC rulemaking proceeding to adopt a baby monitor warning label.

It would mandate that products contains one of the following: "WARNING: WHAT YOU SEE, THEY CAN SEE. Images and sounds captured by this device may be easily viewed or heard by potential intruders outside your home." or "WARNING: WHAT YOU HEAR, THEY CAN HEAR. Sounds captured by this device may be easily heard by potential intruders outside your home."

A wide range of electronics devices, and communications systems, that can be used for lawful surveillance purposes, such as law enforcement intercepts, 911 implementation and location tracking, can also be exploited for illegal and/or privacy invasive purposes. Many of these exploitable capabilities are mandated by Congressional statutes, such as the Communications Assistance for Law Enforcement Act (CALEA) and the NET 911 Improvement Act of 2008, or by FCC rules. Others are the subject of pending proposals, such as HR 1981 [LOC | WW], the data retention bill.

Currently, there are no requirements that electronic device makers, communications or internet service providers, or software developers disclose the surveillance risks of their products, services or applications. Rep. Crowley's proposals would set a precedent.

Rep. Crowley stated that he will continue to seek enactment of his proposal. He introduced his bill on May 5, 2011. It was referred to the HCC and its Subcommittee on Communications and Technology. Neither has held a hearing. The bill has no cosponsors.

3/27. During the House consideration of HR 3309 [LOC | WW], the "Federal Communications Commission Process Reform Act of 2012", the House rejected an amendment offered by Rep. Anna Eshoo (D-CA) not related to FCC reform, but rather to political advertising. It failed by a vote of 179-238. See, Roll Call No. 135.

She offered a similar amendment during the HCC markup on March 6, 2012. The HCC rejected it by a vote of 16-30.

Rep. Eshoo (at right) stated in a release that "All Americans have a right to honest information about who has paid for the political messages they receive".

Rep. Alcee Hastings (D-FL) stated in the House that "Recent Supreme Court rulings, especially the Citizens United case, have opened the door for unlimited spending by wealthy entities aiming to influence the electoral process. These individuals, organizations, and corporations have the financial resources to reach millions of Americans through cable, broadcast television, the radio, and other media. Unfortunately, Americans do not yet have the right to know who is paying for these efforts."

This amendment 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 federal 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.

Current law requires the FEC to collect certain data. This amendment would have put private companies in the position of data collector. That is, it would have mandated that companies perform what is now a governmental function.

Neither current FEC authority, nor the mandate that would have been created by this amendment, reach state or local elections.

Five Republicans voted yes: Rep. Joe Barton (R-TX), Rep. Walter Jones (R-NC), Rep. Don Manzullo (R-IL), Rep. Todd Platts (R-PA), Rep. Bill Young (R-FL). Eight Democrats voted no: Rep. John Barrow (D-GA), Rep. Dan Boren (D-OK), Rep. Dennis Cardoza (D-CA), Rep. Jim Cooper (D-TN), Rep. Kathy Hochul (D-NY), Rep. Colin Peterson (D-MN), Rep. Kurt Schrader (D-OR), and Rep. Heath Shuler (D-NC).

3/27. During the House consideration of HR 3309 [LOC | WW], the "Federal Communications Commission Process Reform Act of 2012", the House rejected a motion to recommit the bill to the House Commerce Committee (HCC) with instructions to add an amendment related to social networking sites offered by Rep. Ed Perlmutter (D-CO). The House rejected this dilatory motion by a vote of 184-236. See, Roll Call No. 137.

The language of the amendment was this: "Nothing in this act or any amendment made by this act shall be construed to limit or restrict the ability of the Federal Communications Commission to adopt a rule or to amend an existing rule to protect online privacy, including requirements in such rule that prohibit licensees or regulated entities from mandating that job applicants or employees disclose confidential passwords to social networking Web sites."

Rep. Perlmutter then explained in the House, inaccurately, that "What this amendment does is it says you cannot demand, as a condition of employment, that somebody reveal a confidential password to their Facebook, to their Flickr, to their Twitter, to whatever their account may be."

Rep. Perlmutter also stated in a release, inaccurately, that he "introduced a provision that would prevent employers from requiring current and prospective employees to hand over their personal passwords as a condition of either keeping or getting a new job"

This amendment would not have enacted a legislative prohibition on demanding password disclosure. Nor would it have required the FCC to promulgate a such rule, or impose it as a condition. It merely addressed the process to be followed at the FCC if it were to impose such a prohibition. The amendment was a dilatory tactic.

However, this has increased the Congressional profile of the issue of employers demanding passwords from employees.

Rep. Patrick McHenry (R-NC) stated during House debate that "I've been working on legislation similar to this. If the gentleman would withdraw, I would be happy to work with him to find legislative language that could be acceptable to all sides, including to national security interests."

Rep. Perlmutter responded, "I would love to work with you, but this is the amendment we are proposing to this bill at this time. I am asking for a vote on this bill at this time."

Rep. Greg Walden (R-OR) said that "this issue didn't come up" during the HCC's long and open process on this bill.

Rep. Walden continued that "I think it's awful that employers think they can demand our passwords and can go snooping around. There is no disagreement with that. Here is the flaw: Your amendment doesn't protect them. It doesn't do that." He reiterated, "There is no protection here. There is nothing there to enforce."

Rep. Perlmutter said that people who use social networking sites "have an expectation of privacy".

He also said that "if an employer wants to pose as or impersonate the individual who's had to turn over their confidential password, that employer I think will be able to reach into personal private information of the user, of the Facebook user, for instance, or the Facebook member, or of the person who is communicating with them, the friend of the Facebook user. So there are two sides to this, both the user of the Facebook as well as those people who correspond with them, that have an expectation of privacy."

The House voted almost completely along party lines. One Republican voted for the amendment: Rep. Walter Jones (R-NC). Two Democrats voted no: Rep. Bill Owens (D-NY) and Rep. Heath Shuler (D-NC).

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The House will not meet on the week of Monday, April 2, through Friday, April 6, or on the week of Monday, April 9, through Friday, April 13, except for pro forma sessions.

The Senate will meet at 2:00 PM in pro forma session. The Senate will not meet on the week of Monday, April 2, through Friday, April 6, or on the week of Monday, April 9, through Friday, April 13, except for pro forma sessions.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in 1st Media v. Electronic Arts, App. Ct. No. 2011-1435. Panel B. Location: Courtroom 402.

12:00 NOON - 1:00 PM. The Internet Caucus will host an event titled "The White House's Proposal For A Framework for Protecting Privacy: Consumer Data Privacy in a Networked World". The speaker will be Daniel Weitzner (Deputy Chief Technology Officer for Internet Policy in the EOP's Office of Science and Technology Policy). Free. Register by contacting rsvp at netcaucus dot org or 202-407-8829. Lunch will be served. Location: Room HC-5, Capitol Building.

6:00 PM. Deadline to submit draft papers to the National Science Foundation (NSF) National Coordination Office (NCO) for Networking and Information Technology Research and Development (NITRD) for its June 11, 2012, event titled "National Symposium on Moving Target Research". The purpose of this symposium is to examine whether there is scientific evidence to show that moving target techniques are a substantial improvement in the defense of cyber systems. See, notice in the Federal Register, Vol. 77, No. 45, Wednesday, March 7, 2012, at Page 13656.

Deadline to submit requests to testify at any of the Copyright Office's (CO) hearings regarding its triennial review of exemptions to the anticircumvention provisions of 17 U.S.C. § 1201. These hearing will be on May 11 in Washington DC, May 17 and 18 in Los Angeles, and May 31, June1, and June 4-6 in Washington DC. See, notice in the Federal Register, Vol. 77, No. 51, Thursday, March 15, 2012, at Pages 15327-15329. Location: CO, Copyright Hearing Room, LM-408, James Madison Building, Library of Congress, 101 Independence Ave., SE.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) [339 pages in PDF] regarding it Lifeline and Link Up universal service tax and subsidy programs. The FCC adopted this FNPRM on January 31, 2012 and released the text on February 6, 2012. It is FCC 12-11 in WC Docket Nos. 11-42, 03-109, and 12-23, and CC Docket No. 96-45. See, notice in the Federal Register, Vol. 77, No. 42, Friday, March 2, 2012, at Pages 12784-12791.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to NextG Networks of California, Inc.'s December 21, 2011, Petition for Declaratory Ruling (part 1 and part 2) regarding whether it is a "commercial mobile radio service" or "CMRS" within the meaning of the FCC's rules. See, FCC's Wireless Telecommunications Bureau's (WTB) February 16, 2012 Public Notice (DA 12-202 in WT Docket No. 12-37). See also, notice in the Federal Register, Vol. 77, No. 39, Tuesday, February 28, 2012, at Pages 12055-12056. And see, NextG Networks web site.

Deadline to submit comments to the Office of Management and Budget (OMB) regarding the information collection burdens imposed by the Federal Communications Commission (FCC) in connection with implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010. See, notice in the Federal Register, Vol. 77, No. 42, Friday, March 2, 2012, at Pages 12837-12839.

EXTENDED FROM MARCH 26. 5:00 PM. Deadline to submit comments to the National Telecommunications and Information Administration (NTIA) in response to its request for comments in its wide ranging private sector data privacy inquiry. The NTIA seeks comments regarding "substantive consumer data privacy issues that warrant the development of legally enforceable codes of conduct, as well as procedures to foster the development of these codes". See, original notice in the Federal Register, Vol. 77, No. 43, Monday, March 5, 2012, at Pages 13098-13101, and extension notice in the Federal Register, Vol. 77, No. 58, Monday, March 26, 2012, at Page 17460.

Day one of a three day conference and exhibition titled "Federal Office System Exposition" (FOSE). There will be numerous panels and workshops on April 3 and 4 pertaining to mobile government, cyber security, and cloud computing and virtualization. See, schedule. Location: Washington Convention Center, 801 Mt. Vernon Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Personalized Media Communications v. Scientific Atlanta, App. Ct. No. 2011-1466. Panel D+. Location: Courtroom 402.

1:00 - 2:00 PM. The law firm of Fulbright & Jaworski will host a webcast panel discussion titled "The Latest on the ADA: A Review of the Final Regulations on Their One-Year Anniversary and Recent Noteworthy Court Decisions". The speakers will be Laurie Vasichek (Equal Employment Opportunity Commission), Jennifer Mathis (Bazelon Center for Mental Health Law), Jeff Wray (F&J) and Barbara D'Aquila (F&J). CLE credits. See, notice and registration page.

3:00 - 5:00 PM. The DC Bar Association will host an event titled "International Trade Law & Policy Debate". The topics to be covered include US PRC relations. The speakers will be Gary Horlick (solo practice) and Paul Rosenthal (Kelley Drye & Warren). The price to attend ranges from $5 to $15. No CLE credits. See, notice. For more information, call 202-626-3463. The DC Bar has a history of barring reporters from its events. Location: U.S. International Trade Commission, 500 E St., SW.

Day two of a three day conference and exhibition titled "Federal Office System Exposition" (FOSE). There will be numerous panels and workshops on April 3 and 4 pertaining to mobile government, cyber security, and cloud computing and virtualization. See, schedule. Location: Washington Convention Center, 801 Mt. Vernon Place, NW.

9:00 AM - 4:30 PM. The Office of the U.S. Trade Representative's (OUSTR) Industry Trade Advisory Committee on Small and Minority Business (ITAC-11) will hold a partially closed meeting. The meeting will be open to the public from 9:00 - 10:30 AM. The committee will discuss the Small Business Administration (SBA) State Trade and Export Promotion Grants Process. See, notice in the Federal Register, Vol. 77, No. 47, Friday, March 9, 2012, at Page 14459. Location: Room 1412, Herbert C. Humphrey Building, 1401 Constitution Ave., NW.

10:00 AM - 3:00 PM. The Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health Information Technology's (ONCHIT) HIT Policy Committee will meet. See, notice in the Federal Register, Vol. 77, No. 52, Friday, March 16, 2012, at Pages 15760-15761. Location: Washington Marriott, 1221 22nd St., NW.

12:30 - 2:00 PM. The American Intellectual Property Law Association (AIPLA) will host a webcast presentation titled "ITC Proceedings and Beyond". The speakers will be James Altman (Foster Murphy Altman & Nickel) and Bert Reiser (Latham & Watkins). CLE credits. CD, MP4 download, archived webcast, and other formats available. Prices vary. See, registration page.

Deadline to submit comments to the Federal Trade Commission (FTC) regarding the consent agreement in its administrative proceeding titled "In the Matter of Western Digital Corporation", regarding Western Digital's proposed acquisition of Viviti Technologies Ltd., formerly known as Hitachi Global Storage Technologies Ltd. See, notice in the Federal Register, Vol. 77, No. 48, Monday, March 12, 2012, at Pages 14523-14525. See also, Complaint, Decision and Order, and FTC web page with hyperlinks to other documents. This proceeding is FTC Docket No. C-4350.

Day three of a three day conference and exhibition titled "Federal Office System Exposition" (FOSE). There will be numerous panels and workshops on April 3 and 4 pertaining to mobile government, cyber security, and cloud computing and virtualization. See, schedule. Location: Washington Convention Center, 801 Mt. Vernon Place, NW.

8:00 AM - 6:00 PM. Day one of a two day meeting of the National Science Foundation's (NSF) Advisory Committee for Mathematical and Physical Sciences. See, notice in the Federal Register, Vol. 77, No. 53, Monday, March 19, 2012, at Page 16076, and forthcoming correction notice. Location: NSF, Room 1235, 4201 Wilson Boulevard, Arlington, VA.

9:00 AM - 5:15 PM. Day one of a two day meeting of the Department of Commerce's (DOC) Science Advisory Board (SAB). See, notice in the Federal Register, Vol. 77, No. 53, Monday, March 19, 2012, at Pages 15996-15997. Location: Washington Plaza Hotel, 10 Thomas Circle, NW.

9:00 AM - 6:00 PM. Day one of a two day meeting to the National Science Foundation's (NSF) Advisory Committee for Mathematical and Physical Sciences, the scope of which includes computer science. See, notice in the Federal Register, Vol. 77, No. 57, Friday, March 23, 2012, at Page 17102. Location: Room 1235, NSF, 4201 Wilson Boulevard, Arlington, VA.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Picture Patents v. Aeropostale, App. Ct. No. 2011-1558. Panel J. Location: Courtroom 203.

Deadline to submit initial comments to the Federal Communications Commission's (FCC) Consumer and Governmental Affairs Bureau (CGAB) regarding whether certain docketed FCC proceedings should be terminated as dormant. See, February 15, 2012, Public Notice (DA 12-220 in CG Docket No. 12-39), and notice in the Federal Register, Vol. 77, No. 44, Tuesday, March 6, 2012, at Pages 13322-13323.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding jurisdictional separations, the process by which incumbent local exchange carriers (ILECs) apportion regulated costs between the intrastate and interstate jurisdictions. The FCC once again proposes to extend the current freeze, through June 30, 2014. This item is FCC 12-27 in CC Docket No. 80-286. See, notice in the Federal Register, Vol. 77, No. 56, Thursday, March 22, 2012, at Pages 16900-16902.

Good Friday.

Passover begins at sundown.

8:00 AM - 3:00 PM. Day two of a two day meeting of the National Science Foundation's (NSF) Advisory Committee for Mathematical and Physical Sciences. See, notice in the Federal Register, Vol. 77, No. 53, Monday, March 19, 2012, at Page 16076, and forthcoming correction notice. Location: NSF, Room 1235, 4201 Wilson Boulevard, Arlington, VA.

9:00 AM - 3:00 PM. Day two of a two day meeting to the National Science Foundation's (NSF) Advisory Committee for Mathematical and Physical Sciences, the scope of which includes computer science. See, notice in the Federal Register, Vol. 77, No. 57, Friday, March 23, 2012, at Page 17102. Location: Room 1235, NSF, 4201 Wilson Boulevard, Arlington, VA.

9:15 AM - 2:30 PM. Day two of a two day meeting of the Department of Commerce's (DOC) Science Advisory Board (SAB). See, notice in the Federal Register, Vol. 77, No. 53, Monday, March 19, 2012, at Pages 15996-15997. Location: Washington Plaza Hotel, 10 Thomas Circle, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Wi-Lan v. LG Electronics, App. Ct. No. 2011-1626. Panel K. Location: Courtroom 201.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Apple v. Samsung, App. Ct. No. 2011-1105. Panel L. Location: Courtroom 402.

10:00 AM - 12:00 PM. The Center for Strategic and International Studies (CSIS) will host an event titled "A Conversation with Six Former USTRs: Taking Stock and Assessing Priorities for the 2012 Trade Agenda". The speakers will be Susan Schwab, Charlene Barshefsky, Michael Kantor, Carla Hills, Clayton Yeutter, and William Brock. See, notice. Location: CSIS, 1800 K St.,  NW.

5:00 PM. Deadline to submit comments to the Office of the U.S. Trade Representative (OUSTR) regarding (1) potential revocation of competitive need limitations (CNL) waivers, (2) possible de minimis CNL waivers, and (3) possible redesignations of articles currently not eligible for GSP benefits because they previously exceeded the CNL thresholds. See, notice in the Federal Register, Vol. 77, No. 52, Friday, March 16, 2012, at Pages 15839-15841.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-53 Rev. 4 [375 pages in PDF], titled "Security and Privacy Controls for Federal Information Systems and Organizations".

3/27. The House amended and passed HR 3309 [LOC | WW], the "Federal Communications Commission Process Reform Act of 2011" on March 27, 2012. The following is an summary of the key provisions of the bill.

Overview. 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, reduce FCC discretion, and increase procedural fairness to affected parties. However, it leaves untouched many practices that decrease transparency. Also, it would decrease transparency by allowing Commissioners to meet in secret.

The bill does not terminate the application of the Administrative Procedure Act (APA) to the FCC. See, 5 U.S.C. § 553 regarding agency rulemaking proceedings. However, it adds some procedural requirements in addition to those currently imposed by the APA.

Similarly, the bill does not reference the Supreme Court's 1984 opinion in Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, or otherwise modify judicially established standards of review, in petitions for review or appeals of final orders of the FCC. However, the bill adds requirements that must be met by the FCC in adopting rules, and in merger reviews, that could provide a basis for the Court of Appeals to overturn an FCC order.

The bill would add a new Section 13 the the Communications Act of 1934 pertaining to FCC process. This new section is titled "Transparency and Efficiency".

Exceptions. The bill also carves out two exceptions to the requirements imposed by this Section 13. These two carve outs were added by amendments approved by the House on March 27.

These two amendments provide that nothing in the new Section 13 "shall be construed to impede the Federal Communications Commission from acting in times of emergency to ensure the availability of efficient and effective communications systems to alert the public to imminent dangerous weather conditions", and nothing in the new Section 13 "shall impede the Federal Communications Commission from ensuring the availability of efficient and effective communications systems for State and local first responders."

Rulemaking Proceedings. The bill would require, in the new Section 13(a), 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". See, 13(a)(2)(A).

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. See, 13(a)(2)(C).

This requirement would apply to rules that have an "economically significant impact", which the bill defines as "an effect on the economy of $100,000,000 or more annually or a material adverse effect on the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities". See, 13(p)(3).

Moreover, the order adopting any such economically significant impact rules must contain "an identification and analysis of the specific market failure, actual consumer harm, burden of existing regulation, or failure of public institutions that warrants the adoption or amendment" and "a reasoned determination that the benefits of the adopted rule or the amendment of an existing rule justify its costs (recognizing that some benefits and costs are difficult to quantify), taking into account alternative forms of regulation and the need to tailor regulation to impose the least burden on society, consistent with obtaining regulatory objectives". See, 13(a)(2)(C). (Parentheses in original.)

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. See, 13(a)(3).

It would require 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. See, 13(b).

Prompt Release of Orders. The bill 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". See, 13(h).

The FCC has often voted to adopt an order or other item when in fact the only document in existence is a news release. Release sometimes comes months later. For example, the FCC adopted its infamous Triennial Review Order on February 20, 2003, but did not release the text of the order until August 21, 2003.

Its key provisions were overturned by the Court of Appeals. Delay in release delayed judicial review.

Shot Clocks. The bill would require the FCC to establish shot clocks that set time frames for FCC action in each type of proceeding it oversees. However, the bill does not set any time periods. See, 13(g).

It provides that "The Commission shall by rule establish deadlines for any Commission order, decision, report, or action for each of the various categories of petitions, applications, complaints, and other filings seeking Commission action ..."

Secret Meetings of Commissioners. 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". See, 13(c).

The five Commissioners conduct little business in public. It events titled "Open Meeting" are largely ceremonial gatherings at which Commissioners read written statements, and hold votes. The real communications and debate takes place, away from public view, via their staffs. This bill would replace one secretive process with another.

This bill contains only a minimal disclosure requirement for closed Commission meetings.

Initiation of Items by Bipartisan Majority. 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. This would impose a limitation on the power of the Chairman. See, 13(d).

Ex Parte Communications. The bill does not address 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. See, 13(e).

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 audio and/or video of ex parte meetings.

Similarly, the bill imposes no disclosure requirements with regard to ex parte Congressional communications.

Transaction Review Standards. Nothing in the bill would prevent the FCC from continuing to use its license transfer review authority to conduct antitrust merger reviews that are duplicative of those conducted by the Department of Justice (DOJ) or Federal Trade Commission (FTC). Nor would it alter the public interest standard applied to license transfers. Nor would it prevent the FCC from imposing conditions upon transactions. See, 13(j).

However, this subject was debated vigorously in the House on March 27. Rep. Henry Waxman (D-CA) stated that "Under current law, the FCC is directed to protect the public interest when reviewing proposed mergers. This bill would curtail this authority significantly. The bill strips the FCC of its authority to require merger conditions that promote broadband adoption, require minimum broadband speeds, require the repatriation of jobs from overseas, or ensure broadband coverage in rural or low-income areas."

Rep. Greg Walden (R-OR) stated that the FCC "would still have the public interest standard that it has today to deny a transfer if it's not in the public interest. We don't take that away".

Rep. Anna Eshoo (D-CA) responded that Rep. Walden "said that the bill doesn't change the public interest standard for reviewing mergers. That simply is not the case. The bill does change it. It alters the ability of the FCC to impose conditions for the public interest".

The bill 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 these requirement.

This new subsection 13(j) provides in full as follows:

"(1) IN GENERAL---The Commission shall condition its approval of a transfer of lines, a transfer of licenses, or any other transaction under section 214, 309, or 310 or any other provision of this Act only if---
    (A) the imposed condition is 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; and
    (B) the Commission 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 of lines, a transfer of licenses, or other transaction.
(2) EXCLUSIONS---In reviewing a transfer of lines, a transfer of licenses, or any other transaction under section 214, 309, or 310 or any other provision of this Act, the Commission may not consider a voluntary commitment of a party to such transfer or transaction unless the Commission could adopt that voluntary commitment as a condition under paragraph (1)."

No Delayed Publication of Federal Register Notices. The bill would require timely publication of certain notices in the Federal Register. Such publication is a prerequisite for filing a petition for review of a final order of the FCC. The FCC has delayed such publication to delay judicial review, as for example, in its net neutrality rulemaking proceeding.

The bill sets a limit as the earlier of of "45 days after the date of the release of the document" or "the day by which such actions must be completed to comply with any deadline under any other provision of law". See, 13(l).

Other Provisions. Rep. Walden's amendment regarding FCC processing of Freedom of Information Act (FOIA) requests, which the House approved on March 27, is at Section 13(o).

The bill also requires the FCC to publish every six months "a report on the performance of the Commission in conducting its proceedings and meeting the deadlines" under this bill. See, 13(i).

The bill also contains provisions related to the FCC online consumer complaints database, online publication of documents, and redaction. See, 13(k), (m) and (n).

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.

Due Process Hearings. Perhaps the most fundamental component of both due process of law and judicial transparency is the right to a hearing before an impartial decision maker. However, there is nothing in this bill that provides a right to any kind of hearing in any FCC proceeding, including adjudications.

3/27. During debates in the House regarding passage of HR 3309 [LOC | WW], the "Federal Communications Commission Process Reform Act of 2012", Republicans argued that the bill is necessary to bring transparency and accountability to the FCC, while Democrats argued that it would disable the FCC.

Another interpretation of this bill, which also provides an explanation for the nearly straight party line vote, is that the FCC in the last several years, on key issues such as net neutrality, has made decisions that are both legislative in nature, and responsive to the directions of key House Democrats, but not House Republicans. Therefore, House Republicans are attempting to reign in what they perceive to be a wayward agency.

The FCC, as former Supreme Court Justice Stevens wrote in the 2009 opinion in FCC v. Fox Television Stations, "is better viewed as an agent of Congress". Many members of Congress have long held this view.

Yet, the FCC under the leadership of Democratic Chairman Julius Genachowski has been acting more as an agent of Congressional Democrats, than as an agent of the Congress.

Since Republicans hold a majority in the House, and may be on the verge of winning a majority in the Senate, they are dissatisfied, and therefore seek to limit FCC discretion. Democrats, such as Rep. Henry Waxman (D-CA), Rep. Anna Eshoo (D-CA), and Rep. John Dingell (D-MI), are content with Genachowski's FCC, and therefore oppose this bill.

If Republicans really wanted to bring transparency and accountability to the FCC, and procedural fairness to affected parties, they would pass legislation more in the nature of the Magnuson Moss Act (MM Act) provisions that govern Federal Trade Commission (FTC) procedure. However, such legislation would substantially weaken the ability of the Congress to provide non-statutory direction to the FCC.

The procedural provisions of the MM Act are Section 18 of the FTC Act, which is codified at 15 U.S.C. § 57a. For more on this, see "Magnuson Moss Versus APA Rulemakings", "What Magnuson Moss Requires of the FTC", and "Commentary: Effect of Agency Rulemaking Procedure Upon Congressional Power" in TLJ Daily E-Mail Alert No. 2,267, July 23, 2012.

Under this interpretation, if a Republican were elected President in November, and the Chairmanship and majority of the FCC therefore switched to Republican, one might expect Republican enthusiasm for HR 3309 to wane in the 113th Congress.

Similarly, if President Obama were to win re-election in November, but Republicans were to gain a majority in the Senate, the Chairmanship of the Senate Commerce Committee (SCC) would switch from Sen. John Rockefeller (D-WV) to a Republican, perhaps Sen. Jim DeMint (R-SC). In this case, Senate passage of a bill would become realistic possibility.