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Thursday, June 21, 2012, Alert No. 2,401.
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Senate Passes Farm Bill with Rural Broadband Provisions

6/21. The Senate passed S 3240 [LOC | WW], a huge bill pertaining to agriculture. It also includes provisions related to rural telecommunications, broadband and telemedicine.

The vote on final passage was 64-35. See, Roll Call No. 164. The House has yet to pass this bill.

See also, story titled "Senate to Take Up Farm Bill with Rural Broadband and Telemedicine Provisions" in TLJ Daily E-Mail Alert No. 2,391, June 6, 2012.

Broadband Loans and Grants. Section 6104 of the bill makes changes to Section 601 of the Rural Electrification Act (REA), which is codified at 7 U.S.C. § 950bb. Section 601 pertains to rural broadband loans and grants.

On June 20 the Senate approved an amendment (No. 2457) offered by Sen. Mark Warner (D-VA), Sen. Mark Kirk (R-IL), Sen. Jeanne Shaheen (D-NH), and others, that replaced Section 6104 of the bill as introduced.

Sen. Mark WarnerSen. Warner (at right) stated during debate in the Senate on June 20 that this "does three things in the broadband area. It accelerates access to those areas that are underserved. As a matter of fact, we have a 2009 USDA IG report which showed that less than 3 percent of loans provided by RUS went toward unserved communities."

Second, he said that "it creates greater access and transparency and accountability standards for RUS and applicants. These are items that were brought forward from the GAO and the IG of the USDA and CRS."

"It also allows greater levels of accountability in ensuring that those States that collect data by address -- that that information is related to RUS, so we don't have counties where certain parts are served and other parts are left unserved, never able to get access."

After brief discussion of this amendment, the Senate approved it by voice vote. Sen. Mark Begich (D-AK) and Sen. Ben Nelson (D-NE) stated that had there been a roll call vote, they would have voted no.

This amendment provides that "In making grants, loans, or loan guarantees" the RUS shall "give the highest priority to applicants that offer to provide broadband service to the greatest proportion of unserved rural households or rural households that do not have residential broadband service that meets the minimum acceptable level of broadband service established under subsection (e), as -- (I) certified by the affected community, city, county, or designee; or (II) demonstrated on -- (aa) the broadband map of the affected State if the map contains address-level data; or (bb) the National Broadband Map if address-level data is unavailable ..."

Then, after according this priority, the RUS shall "give priority to projects that serve rural communities -- (i) with a population of less than 20,000 permanent residents; (ii) experiencing outmigration; (iii) with a high percentage of low-income residents; and (iv) that are isolated from other significant population centers".

This amendment also provides that "As a condition of receiving a grant, loan, or loan guarantee ... a recipient of assistance shall provide ... address-level broadband buildout data that indicates the location of new broadband service that is being provided or upgraded within the service territory supported by the grant, loan, or loan guarantee ... for purposes of inclusion in the semiannual updates to the National Broadband Map that is managed by the National Telecommunications and Information Administration".

This also increases the authorization for appropriations from $25 Million per year through 2012 to $50 Million per year 2017.

The National Cable & Telecommunications Association (NCTA) stated in a release that this amendment "makes significant improvements to the RUS broadband program".

"Specifically, the amendment establishes new provisions that will improve program transparency and better target funding to projects that will extend broadband service to unserved areas. Given the scarcity of federal dollars, it is critical that government use its resources efficiently by limiting subsidized overbuilds and focusing its efforts on extending access to the roughly 18 million Americans currently without broadband."

Other Program Extensions. Section 6102 of the bill as passed by the Senate would amend Section 313A(f) of the Rural Electrification Act of 1936 (REA), which is codified at 7 U.S.C. § 940c-1(f). It authorizes the Department of Agriculture (DOA) to make loan guarantees for telephone purposes. It is set to expire on September 30 of this year. This bill would to extend this program through 2017.

Section 6103 of the bill as passed by the Senate would amend Section 315(d) of the REA, which is codified at 7 U.S.C. § 940e(d). It authorizes the DOA to make loans "for facilities and equipment to expand or improve in rural areas ... 911 access ... integrated interoperable emergency communications ... homeland security communications ... transportation safety communications ... or ... location technologies ...". It is set to expire this year. This bill would extend this program through 2017.

Section 6201 of the bill as passed by the Senate would amend 7 U.S.C. § 950aaa-5, which authorizes the appropriation of $100 Million per year for telemedicine and distance learning in rural areas. Current authority expires this year. This bill would extend this program through 2017.

Sen. DeMint's Amendments Rejected. The Senate rejected amendments offered by Sen. Jim DeMint (R-SC), who is likely to become the Chairman of the Senate Commerce Committee (SCC) in the event that Republicans win a majority in the Senate in November elections.

On June 20, the Senate rejected an amendment (No. 2273) offered by Sen. DeMint by a vote of 44-55 that would have eliminated the authority of the Secretary to increase the amount of rural broadband grants. See, Roll Call No. 141. Only one Democrat voted for this amendment.

Sen. Jim DeMintSen. DeMint (at right) stated during floor debate that the "bill adds a new grant component to the existing rural utility service broadband loans and loan guarantee program. My amendment would eliminate the authority of the Secretary of the Department of Agriculture to increase the taxpayer share of these broadband grants beyond 50 percent."

He added, "Please keep in mind that these are not direct loans, these are grants that require no payback. It is important that recipients have some skin in the game so that they make good decisions. My amendment allows the 50-percent threshold cost sharing but does not allow the Secretary to waive that and make that a 75-percent share by the taxpayer.

This amendment first provided that "The amount of any grant made under this section shall not exceed 50 percent of the development costs of the project for which the grant is provided."

Second, it provided that "The Secretary shall establish the grant rate for each project in accordance with regulations issued by the Secretary that shall provide for a graduated scale of grant rates that establish higher rates for projects in communities that have -- (i) remote locations; (ii) low community populations; (iii) low income levels; and (iv) developed the applications of the communities with the participation of combinations of stakeholders, including -- (I) State, local, and tribal governments; (II) nonprofit institutions; (III) institutions of higher education; (IV) private entities; and (V) philanthropic organizations.''

On June 19 the Senate rejected an amendment (No. 2263) offered by Sen. DeMint by a vote of 45-54 that would have maintained the rural broadband funding level at $25 Million per year. See, Roll Call No. 136. It was another nearly straight party line vote.

Sen. DeMint stated in the Senate that "The current level of spending is at $25 million. If anything, given our $16 trillion in debt, one would think we would come in somewhat below that. But the farm bill doubles our current level from $25 million to $50 million. My amendment keeps spending at the $25 million level."

Strickling Addresses Internet Governance

6/15. Lawrence Strickling, head of the National Telecommunications and Information Administration (NTIA), gave a speech in Washington DC in which he discussed the upcoming World Conference on International Telecommunications (WCIT), proposals to give the United Nations (UN) or International Telecommunications Union (ITU) governmental authority over the internet, Internet Corporation for Assigned Names and Numbers (ICANN) accountability and transparency, the Internet Assigned Numbers Authority (IANA) functions contract, and  consumer data privacy.

Lawrence StricklingStrickling (at right) stated that the goal of the "Obama Administration is to the preserve an open, interconnected global Internet that supports continued innovation, economic growth and the free flow of information" and "preserve and enhance the multistakeholder model as the preferred tool for dealing with Internet policy issues".

He said that "NTIA continues to be a strong supporter of ICANN's multistakeholder approach" and "we oppose the extension of intergovernmental controls over the Internet".

He also stated that "it is critical that ICANN complete three work streams that will further enhance the tools available to law enforcement and consumer protection officials as the new gTLD program unfolds. The first of these is a strengthened Registrar Accreditation Agreement that takes into account the proposals of law enforcement agencies as endorsed by ICANN’s Governmental Advisory Committee (GAC). Second is the need for ICANN to address a range of deficiencies in the implementation of WHOIS policy. Third is the need for ICANN to fully staff and enhance ICANN’s contract compliance division."

Former AG Mukasey Condemns Cyber Warfare Leaks

6/21. Former Attorney General Michael Mukasey wrote an opinion piece titled "Plugging the National Security Leaks" that was published in the June 21, 2012, issue of the Wall Street Journal in which he condemned disclosure by the Obama administration of national security related information, including information about the US cyber attacks on Iran's nuclear weapons development program.

Mukasey was the Attorney General late in the Bush Administration. From 1988 through 2006 he was a Judge of the U.S. District Court (SDNY). He was the presiding Judge in the criminal trials of terrorists Omar Abdel Rahman, El Sayyid Nosair, and others. He is now a partner in the New York City office of the law firm of Debevoise & Plimpton.

He wrote that "in May 2011, the Defense Department announced that a cyber attack that inflicted physical damage on the U.S. would be considered an act of war and would justify a kinetic response."

Michael MukaseyMukasey (at right) wrote that "Has a so-far-unnamed U.S. official, in boasting about the physical damage caused by a computer virus we allegedly helped to develop, now justified a kinetic response from Iran or some group claiming to act in its behalf? What protective steps will our enemies take to counteract the programs described in these newspaper articles? What valuable information  will foreign intelligence agencies now withhold from us in the justified belief that we cannot be trusted to protect secrets?"

Eric HolderAttorney General Eric Holder (at left) has named two U.S. Attorneys, Ronald Machen and Rod Rosenstein, who answer to Holder, to investigate. See, story titled "Holder Assigns Two to Investigate Cyber Warfare Leaks" and related stories, in TLJ Daily E-Mail Alert No. 2,394, June 9, 2012.

However, Mukasey wrote that the better course of action would be a Congressional investigation. He argued that "this inquiry should proceed in Congress". He argued also that the Constitution "empowers Congress to investigate, prosecute and try what our founding charter quaintly refers to as ``high crimes and misdemeanors,´´ a category that may include conventional crimes but is certainly not limited to them. Rather, it embraces all grave breaches of public trust, criminal or not, and the public trust was assuredly breached here." See, Constitution, Article II, Section 4.

Attorneys General, current and former, do not speak so openly and bluntly of each others' activities. However, it should be noted that on June 12 Holder alleged at a Senate Judiciary Committee (SJC) hearing that Mukasey had been briefed on matters relevant to the pending scandal referred to as "fast and furious". The DOJ on June 18 retracted Holder's defamatory allegation as "inadvertently" made.

Mukasey also pointed out that "Those empowered to classify information are also empowered to declassify it. If these disclosures came from, or with authorization from, people allowed to declassify information -- including but not limited to the President -- there was no crime even in the disclosure of purported cyber activity."

Judicial Appointments

6/21. The Senate Judiciary Committee (SJC) held an executive business meeting at which it approved the nomination of Brian Davis to be a Judge of the U.S. District Court (MDFl) by a vote of 10-7.

6/21. The Senate Judiciary Committee (SJC) held an executive business meeting at which it held over consideration of the nominations of Terrence Berg (USDC/EDMich), Jesus Bernal (USDC/CDCal), and Lorna Schofield (USDC/SDNY). All three nominations are again on the agenda for the SJC's next executive business meeting on June 28, 2012. See, notice.

6/18. The Senate confirmed Mary Lewis to be a Judge of the U.S. District Court (DSCar) by a vote of 64-27. See, Roll Call No. 122.

In This Issue
This issue contains the following items:
 • Senate Passes Farm Bill with Rural Broadband Provisions
 • Strickling Addresses Internet Governance
 • Former AG Mukasey Condemns Cyber Warfare Leaks
 • Judicial Appointments
 • More People and Appointments
 • More News
Washington Tech Calendar
New items are highlighted in red.
Friday, June 22

The House will not meet. See, Rep. Cantor's schedule.

The Senate will not meet. It will next meet on Monday, June 25.

The American Intellectual Property Law Association (AIPLA) will host an event titled "AIPLA 4th Annual Trademark Boot Camp". For more information, contact aipla at aipla dot org or call 703-415-0780. Location: Alexandria, VA.

Monday, June 25

The Senate will meet at 2:00 PM. It will resume consideration of the motion to proceed to S 1940 [LOC | WW], the "Flood Insurance Reform And Modernization Act".

Deadline to submit to the Federal Communications Commission (FCC) replies to oppositions to the petitions for reconsideration of the FCC's latest Low Power Radio Service order. The FCC adopted and released this Fourth Report and Order and Third Order on Reconsideration on March 19, 2012. It is FCC 12-29 in MB Docket No. 99-25. See, notice in the Federal Register, Vol. 77, No. 105, Thursday, May 31, 2012, at Page 32075. See also, petition of the Educational Media Foundation, petition of Hope Christian Church of Marlton and others, petition of Corner Media, and petition of Kyle Magrill. And see, story titled "FCC Releases Two Items Regarding Local Community Radio Act" in TLJ Daily E-Mail Alert No. 2,351, March 20, 2012.

Deadline for Facebook to respond to the interrogatories propounded by Rep. Ed Markey (D-MA) and Rep. Joe Barton (R-TX) in their June 4, 2012, letter [3 pages in PDF] regarding Facebook's plans to allow children under 13 to use Facebook. See, story titled "Rep. Markey and Rep. Barton Write Facebook Regarding Plans to Target Children" in TLJ Daily E-Mail Alert No. 2,391, June 6, 2012.

Deadline to submit oppositions and comments to the Federal Communications Commission (FCC) regarding the American Cable Association's (ACA) Petition for Reconsideration of the FCC's Fifth Report and Order [130 pages in PDF] regarding the Emergency Alert System (EAS). This order continues the FCC's process of revising its EAS rules to specify the manner in which EAS participants must be able to receive alert messages formatted in the Common Alerting Protocol (CAP). The FCC adopted this item on January 9, 2012, and released the text on January 12, 2012. It is FCC 12-7 in EB Docket No. 04-296. The ACA asked in its April 23, 2012, petition for a streamlined waiver process for small cable systems serving fewer than 501 subscribers that lack physical connectivity to broadband Internet access. See also, notice in the Federal Register, Vol. 77, No. 111, Friday, June 8, 2012, at Pages 33995-33997. See also, the ACA's April 23 release and the FCC's May 25, 2012, Public Notice (DA 12-834).

Tuesday, June 26

15th anniversary of the Supreme Court's opinion in Reno v. ACLU, 521 U.S. 844 (1997).

8:00 AM - 5:00 PM. The Department of Commerce's (DOC) National Institute of Standards and Technology (NIST) will host an event titled "National Cybersecurity Center of Excellence Workshop". The deadline to register is 5:00 PM on June 19. See, notice in the Federal Register, Vol. 77, No. 87, Friday, May 4, 2012, at Page 26511-26512. Location: Universities at Shady Grove, 9630 Gudelsky Drive, Rockville, MD.

11:00 AM - 12:00 NOON. The National Science Board's (NSB) Committee on Science and Engineering
Indicators will hold a meeting on site and by teleconference. See, notice in the Federal Register, Vol. 77, No. 114, Wednesday, June 13, 2012, at Page 35430. Location: National Science Foundation, 4201 Wilson Blvd., Arlington, VA.

12:00 NOON - 1:30 PM. The American Bar Association (ABA) will host a teleconferenced panel discussion titled "An Overview of the Process: A Discussion on the Procedural Aspects of Merger Review". The topics to be discussed include voluntary requests, second requests, timing agreements, privilege logs, remedies, privacy issues, and civil investigative demands. The speakers will be Vittorio Cottafavi (Shearman & Sterling), Jeremy Morrison (FTC), Richard Mosier (DOJ Antitrust Division), and Kathleen Sanderson (Baker & McKenzie). No CLE credits. Free. See, notice.

Wednesday, June 27

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Communications and Technology (SCT) will hold a hearing titled "The Future of Video". See, notice. Location: Room 2123, Rayburn Building.

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Intellectual Property, Competition and the Internet will hold a hearing titled "International IP Enforcement: Protecting Patents, Trade Secrets and Market Access". See, notice. Location: Room 2141, Rayburn Building.

10:00 AM. The House Science Committee's (HSC) Subcommittee on Research and Science Education will hold a hearing titled "The Role of Research Universities in Securing America’s Future Prosperity: Challenges and Expectations". See, notice. Location: Room 2318, Rayburn Building.

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

1:00 - 3:15 PM. The DC Bar Association will host a presentation titled "Cloud Computing Transactions Workshop: A Systems Approach to Avoiding Thunderstorms". The speakers will be Ward Classen (Computer Sciences Corporation) and Philip Porter (Hogan Lovells). The price to attend ranges from $89 to $129. Reporters are barred from attending most DC Bar events. CLE credits. See, notice. For more information, call 202-626-3488. Location: DC Bar Conference Center, 1101 K St., NW.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a teleconferenced presentation titled "Government, Technology and the Expectation of Privacy in the Aftermath of U.S. v. Jones". Prices vary. See, ABA notice. See also, January 23, 2012, opinion [34 pages in PDF] of the U.S. Supreme Court holding that GPS tracking of a vehicle constitutes a search within the meaning of the 4th Amendment.

Thursday, June 28

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Crime, Terrorism, and Homeland Security will hold a hearing titled "Identity Theft and Income Tax Preparation Fraud". See, notice. Location: Room 2141, Rayburn Building.

10:00 AM. The House Homeland Security Committee's (HHSC) Subcommittee on Counterterrorism and Intelligence will hold a hearing titled "Economic Espionage: A Foreign Intelligence Threat to American Jobs and Homeland Security". See, notice. Location: Room 311, Cannon Building.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "A Need for Privacy Protections: Is Industry Self Regulation Adequate?". The witnesses will be Bob Liodice (Association of National Advertisers), Peter Swire (Ohio State University), Berin Szoka (Tech Freedom), and Alex Fowler (Mozilla). Location: Room 253, Russell Building.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) International Telecommunications Committee will host an event titled "The 2012 WCIT: Crafting International Telecommunication Regulations for the Twenty-First Century". There will be a government panel. The speakers will be Richard Beaird (Senior Deputy United States Coordinator for International Communications and Information Policy, Department of State), Vernita Harris (Deputy Associate Administrator, Office of International Affairs, NTIA), and Al Lewis (Special Counsel, FCC). There will then be a private sector panel. The speakers will be David Gross (Wiley Rein), Richard Whitt (Google), Walter McCormick (USTelecom), Gigi Sohn (Public Knowledge), and Sally Wentworth (Internet Society). Registrations and cancellations due by 12:00 NOON on June 27. CLE credits. See, notice. Location: Bingham McCutchen, 2020 K St., NW.

Friday, June 29

No events listed.

More People and Appointments

6/20. Secretary of Commerce John Bryson resigned. See, statement by President Obama, and statement by Sen. John Rockefeller (D-WV). Rebecca Blank is the acting Secretary of Commerce.

6/20. President Obama withdrew the nomination of Patricia Wald to be a Member of the Privacy and Civil Liberties Oversight Board (PCLOB). See, White House news office release. See, story titled "Senate Judiciary Committee Holds Hearing on PCLOB Nominees" in TLJ Daily E-Mail Alert No. 2,375, April 19, 2012.

6/20. James Kroeker, the Securities and Exchange Commission (SEC) Chief Accountant will leave the SEC in July. See, SEC release.

6/15. Thomas Butler was named Director of the Securities and Exchange Commission's (SEC) Office of Credit Ratings. See, SEC release.

6/15. Eileen Rominger, Director of the Securities and Exchange Commission's (SEC) Division of Investment Management will retire in July. See, SEC release.

More News

6/22. The Department of the Air Force published a notice in the Federal Register (FR) that announced that its Public Interface Control Working Group (ICWG) will hold a two day meeting on September 5-6, 2012, in El Segundo, California to discuss NAVSTAR GPS public Signals in Space documents. The deadline to submit comments is July 20, 2012. The deadline to register is August 6, 2012. See,  FR, Vol. 77, No. 121, Friday, June 22, 2012, at Page 37660.

6/21. The Federal Communications Commission (FCC) published a notice in the Federal Register (FR) that sets comment deadlines for its Notice of Proposed Rulemaking (NPRM) [22 pages in PDF] regarding creating a Do-Not-Call registry for public safety answering points (PSAPs). The FCC adopted this item on May 21, 2012, and released the text on May 22. It is FCC 12-56 in CG Docket No. 12-129. See, FR, Vol. 77, No. 120, Thursday, June 21, 2012, Pages 37362-37367. Deadline to submit initial comments is July 23, 2012. The deadline to submit reply comments is August 6, 2012.

6/20. The U.S. Patent and Trademark Office (USPTO) announced in a release that its Patent Law School Clinic Certification Pilot Program, which allows supervised law students to practice, pro bono, before the USPTO, will add a Petition to Make Special component. The release explains that "Schools participating in the program will be allowed a set number of applications to be advanced out of turn each semester beginning with the upcoming fall 2012 academic year."

6/20. The U.S. Patent and Trademark Office (USPTO) announced in a release that is has extended its After Final Consideration Pilot (AFCP) to September 30, 2012. The release explains that "Originally scheduled to end on June 16, 2012, the extension of the AFCP will give more stakeholders the opportunity to have their patent applications given enhanced consideration after a final rejection. The extension will also enable the USPTO to gather additional data to evaluate the pilot and identify best practices for compact prosecution."

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