11/6. November 6, 2012, was a federal election day. President Obama was re-elected President. There is little change in the partisan make up of the House and Senate. Republicans will loose about ten seats, but retain their majority in the House. Democrats retained their majority in the Senate.

While there is little change overall, technology related policy may be affected by the retirement, defeat or running for other office of certain key legislators.

Sen. Herb Kohl (D-WI) (at left), a senior member of the Senate Judiciary Committee (SJC), did not run for re-election. He has long been either the Chairman or ranking Democrat on the SJC's antitrust subcommittee. Also, the state of Wisconsin has historically been well represented on the HJC and SJC. Former Sen. Russ Feingold (D-WI) had been a SJC member before his defeat in the 2010 general election.

Rep. Tammy Baldwin (D-WI), who currently represents Madison, Wisconsin in the House, was elected to Sen. Kohl's seat. Madison is the location of the University of Wisconsin at Madison (UW), one of the largest universities in the US, and one of the most active in scientific research. There is also the Wisconsin Alumni Research Foundation (WARF), which represents the economic interests of UW inventors and the UW in intellectual property policy debates.

Rep. Baldwin (at right), who went to law school at the UW, is currently a member of the House Commerce Committee (HCC). However, she was previously a member of the House Judiciary Committee (HJC). She is a possible candidate for appointment to the SJC.

Rep. Jim Sensenbrenner (R-WI) won re-election in a district that includes the suburbs of the Milwaukee, Wisconsin. His district is close to Madison, and is home to some inventors associated with the UW and WARF. He as represented the interests of the WARF, and indirectly, the university patent community, in legislative debates. He is a senior member of the HJC. However, he is also a senior member of the House Science Committee (HSC). He has announced that he wants to be Chairman of the HSC in the 113rd Congress. If selected, this would diminish his involvement in intellectual property matters. The current Chairman, Rep. Ralph Hall (R-TX), won re-election by is term limited by House Republican rules.

Rep. Lamar Smith (R-TX), the current Chairman of the HJC, won re-election, but is term limited from continuing as HJC Chairman. He too is seeking the Chairmanship of the HSC.

Three other HJC Republicans and one HJC will not return for the 113th Congress. Rep. Elton Gallegy (R-CA) retired. Rep. Sandy Smith (R-FL) lost in the Republican primary.

Rep. Mike Pence (R-IN) was elected Governor of the state of Indiana. Rep. Pence has long been a leading advocate in the House for legislation to protect journalists and ISPs, and promote the free flow of information. These bills, also known as "media shield", would have limited the ability of the federal entities to compel journalists to provide testimony or documents, or disclose sources, related to their work. Former Rep. Rick Boucher (D-VA), who lost in the 2010 general election, cosponsored bills with Rep. Pence. The Department of Justice (DOJ) and both the Bush and Obama administrations opposed these bills. See also, stories titled "House Judiciary Committee Approves Media Shield and Communications Services Provider Protection Bill" in TLJ Daily E-Mail Alert No. 1,919, March 30, 2009, and "House Approves Boucher-Pence Media Shield Bill" in TLJ Daily E-Mail Alert No. 1,656, October 17, 2007.

One HJC Democrat will not return -- Rep. Howard Berman (D-CA). Rep. Smith and Rep. Berman have been leading advocates of the rights of intellectual property owners.

Rep. Bob Goodlatte (R-VA) (at right), who easily won re-election, is perhaps the most likely member of the HJC to become its next Chairman. While not so closely associated with the movie and record industries as Rep. Berman, he too is an ardent advocate of intellectual property rights, and one of the leading authorities in the Congress on information and communications technologies (ICT), and the laws that affect ICT.

Sen. Kay Hutchison (R-TX), the ranking Republican on the Senate Commerce Committee (SCC), did not run for re-election. Ted Cruz was elected to her seat. Sen. Olympia Snowe (R-ME) also retired. This leaves open the position of ranking Republican on the SCC, and Sen. Jim DeMint (R-SC) with the most seniority. 

Sen. Jon Kyl (R-AZ), a senior member of the SJC, did not run for re-election either. He has been a constant ally of law enforcement and intelligence agencies on issues involving electronic surveillance issue.

Rep. Jeff Flake (R-AZ) (at left) was elected to fill Sen. Kyl's seat. Rep. Flake is a member of the House Appropriations Committee (HAC). The focus of his legislative effort for years has been reducing wasteful government spending. However, it should be recalled that he once held a seat on the HJC.

Other Senate Republicans who once championed the interests of individuals and businesses in privacy and liberty in the context of government surveillance, such as former Sen. John Sununu (R-NH) and former Sen. Larry Craig (R-ID), have left the Senate. The 113th Congress consider bills to update the ECPA to uphold legitimate expectations of privacy in cloud computing, data retention, mobile location data, and warrantless surveillance. However, it is difficult to spot Republican in the Senate who might take a leading role.

Rep. Flake may be one candidate. Back in 2005, when he was on the HJC, the Committee conducted a lengthy series of hearing on the surveillance provisions of the 2001 USA PATRIOT Act. In early hearings, Rep. Flake was aggressively questioning Bush administration officials regarding their implementation of the statute. He was also working on a bipartisan basis with House Democrats. However, House and Senate Democratic leaders, including Sen. Charles Schumer (D-NY) and Rep. Jerrold Nadler (D-NY), then determined to use wiretaps and other surveillance practices as a campaign issue for the 2006 elections, and began partisan attacks on the Bush administration. Rep. Flake backed off. After the 2008 election President Obama made clear that his surveillance related policies would be no different from former President Bush's. Many House and Senate Democrats then backed off the issue too.

However, Ted Cruz may be a more likely candidate for appointment to the SJC. Not only is he an attorney, he clerked for former Judge Mike Luttig of the U.S. Court of Appeals (4thCir), and former Chief Justice William Rehnquist. He also served as Solicitor General of the state of Texas, and more recently as a  partner in the Houston and Washington DC offices of the law firm of Morgan Lewis. He recently argued and won a patent case before the Supreme Court: Global Tech Appliances  v. SEB.

Cruz was also once in charge of e-commerce deregulation efforts at the Federal Trade Commission (FTC). See, story titled "E-Commerce Deregulator Wins Texas Senate Republican Primary" in TLJ Daily E-Mail Alert No. 2,419, August 3, 2012.

In addition to Sen. Hutchison and Sen. Snowe (R-ME), Sen. Daniel Inouye (D-HI) another senior member of the SCC, did not run for re-election.

11/6. President Obama and the Senate Democratic leadership have backed legislation that would create a new federal regulatory regime affecting critical infrastructure providers. See, S 3414 [LOC | WW]. However, it has not been passed by any Committee or by the full Senate. And, the House has taken no action on it either.

The House has already passed a bill that would not create a new regulatory regime, but rather that would make numerous changes to law to incent information sharing to further cyber security. See, HR 3523 [LOC | WW], the "Cyber Intelligence Sharing and Protection Act" or "CISPA". However, the Senate Democratic leadership has ignored it.

Some proponents of the CISPA may have hoped that a defeat of President Obama, and a Republican majority in the Senate, would substantially enhanced the prospects for quick enactment of the CISPA into law. Any such hopes were dashed by election results.

On the other hand, the House Republicans' retention of a solid majority in the House, and the fact that the CISPA won 42 Democratic votes, suggests that a change of course in the House is also highly unlikely.

The possible outcomes now include compromise legislation, and inaction by deadlock.

Sen. Harry Reid (D-NV) forced S 3414 to the Senate floor (without hearings, markups, time to review the bill, or opportunity to amend it) just before the August recess. A vote to end a filibuster failed. It was a partisan vote, but four Democrats joined Republicans in stopping the bill.

Many House and Senate Democrats went into the November 2010 elections with a record of having just voted the Democratic Party line in the 111th Congress on bills that proved to be unpopular with many of their constituents. In contrast, few Democrats suffered defeats in November 2012 in part because there were fewer such votes in the 112th Congress, and because they had distanced themselves from President Obama and their party leadership.

For example, Sen. Jon Tester (D-MT) won re-election in Montana. However, President Obama won only 42% of the vote in that state. Sen. Tester defied President Obama and the Senate Democratic leadership by voting to block S 3414.

The other four Democrats who voted to block S 3414 -- Sen. Max Baucus (D-MT), Sen. Mark Pryor (D-AR), Sen. Jeff Merkley (D-OR), and Sen. Ron Wyden (D-OR) -- were not up for re-election.

Five Republicans voted to end the filibuster of S 3414 -- Sen. Scott Brown (R-MA), Sen. Susan Collins (R-ME), Sen. Olympia Snowe (R-ME),  Sen. Dan Coats (R-IN), and Sen. Richard Lugar (R-IN). Three will not be back in the 113th Congress. Sen. Brown lost. Sen. Snowe retired. Sen. Lugar lost in his primary election.

In addition, Sen. Joe Lieberman (D-CT), the sponsor of S 3414, and Chairman of the Senate Homeland Security and Governmental Affairs Committee, retired.

So perhaps, the prospects for passage of S 3414 by the Senate will diminish in the next Congress. This may provide the Senate Democratic leadership some further incentive to try for passage during the lame duck session of the current Congress.

11/6. The 2012 election results will likely have little impact upon the regulation of broadband internet access service (BIAS) providers.

The Federal Communications Commission (FCC) promulgated rules in December of 2010. See, Report and Order (R&O) [194 pages in PDF] and stories in TLJ Daily E-Mail Alert No. 2,186, December 22, 2010, and TLJ Daily E-Mail Alert No. 2,188, December 24, 2010.

Judicial review of those rules is now pending in the U.S. Court of Appeals (DCCir).

There is a correlation between party affiliation and support for BIAS regulation. Many Democrats support BIAS regulation. Many Republicans oppose it. However, enactment of legislation is highly unlikely. Proponents of regulation did not have enough votes to pass legislation in either the House Commerce Committee (HCC) or the full House, even during the 110th and 111th Congresses when Democrats held a majority of the seats. Going into the 113th Congress, proponents lack the votes to get a bill through either the House or Senate. On the other hand, opponents of BIAS regulation lack the votes, now and in the next Congress, to pass a Senate bill that would undo FCC's BIAS rules. See for example, story titled "Analysis of Support for a Network Neutrality Mandate in the House and Senate" in TLJ Daily E-Mail Alert No. 1,532, February 5, 2007.

There has been, and will continue to be, a legislative stalemate on BIAS regulation.

Indeed, it is largely because of this stalemate FCC Chairman Julius Genachowski and the two other Democratic Commissioners promulgated BIAS rules in 2010. The FCC acted, as it often does during both Democratic and Republican administrations, as an agent of the Congress and President, to impose rules that are legislative in nature, because of the inability of the actual legislature to act. In this case, the three FCC Democrats acted on behalf of Congressional Democratic leaders and President Obama.

Some critics of the FCC's regulatory regime might have hoped that a defeat of President Obama, a Republican majority in the Senate, and Sen. Jim DeMint (R-SC) assuming the Chairmanship of the Senate Commerce Committee (SCC) would have enabled FCC action, or enactment of legislation, undoing the FCC's BIAS regulatory regime, and substituting a new regulatory paradigm, more in the nature of antitrust law, that is based upon findings of market failure and cost benefit analyses.

Those dreams were dashed on Tuesday.

Now, the fate of the FCC's BIAS rules lies with the DC Circuit, not the Congress. There is a substantial likelihood that the Court will overturn these rules, as it vacated the FCC's Comcast order, and its broadcast flag order, for the lack of statutory authority. See, April 6, 2010, opinion [36 pages in PDF] in Comcast v. FCC, and story titled "Court of Appeals Vacates FCC's Comcast Order", and related stories, in TLJ Daily E-Mail Alert No. 2,072, April 7, 2010.

The FCC would then have several options. It could abandon its effort. Alternatively, it could impose a Title II regulatory regime for BIAS providers.

Or, the FCC could defy the Court and write new but similar rules, and then once again drag out the judicial review process. One might recall, for example, that following enactment of the Telecommunications Act of 1996, the FCC four times wrote rules to implement the unbundled network elements requirement of Section 251. The first three times, the courts struck down key components of the FCC's rules. The FCC defied judicial interpretation of the statute in its second and third orders. It also engaged in dilatory tactics. It took a decade for the regulatory dust to settle.

The House will not meet.

The Senate will not meet.

8:15 AM - 5:00 PM. The American Bar Association (ABA) will host a conference titled "2012 Antitrust Fall Forum". The speakers and other participants will include Judge Douglas Ginsburg (USCA/DCCir), Judge Dianne Wood (USCA/7thCir), Renata Hesse (DOJ/AD), Lynda Marshall (DOJ/AD), Leslie Overton (DOJ/AD), Deirdre McEvoy (DOJ/AD), Thomas Rosch (FTC Commissioner), Maureen Ohlhausen (FTC Commissioner), Howard Shelanski (Director of the FTC's Bureau of Economics), David Vladeck (Director of the FTC's Bureau of Consumer Protection), Reilly Dolan (FTC), Zachary Katz (Chief of Staff to FCC Chairman Genachowski), Jake Sullivan (Department of State), Lucy Morris (CFPB), Scott Hemphill (Chief of the Antitrust Bureau, New York), and Carlos Ragazzo (Superintendent of the Council for Economic Defense, Brasilia, Brazil). Prices vary. CLE credits. See, event web site and agenda. Location: National Press Club, 13th Floor, 529 14th St. NW.

9:00 AM. Day two of a two day meeting of the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Information Systems Technical Advisory Committee. The November 8 portion of this meeting is closed to the public. See, notice in the Federal Register, Vol. 77, No. 204, October 22, 2012, at Page 64464. Location: DOC, Hoover Building, Room 3884, 14th Street between Constitution and Pennsylvania Avenues, NW.

RESCHEDULED. 9:30 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Sensors and Instrumentation Technical Advisory Committee will hold a partially closed meeting. See, notice in the Federal Register, Vol. 77, No. 213, November 2, 2012, at Pages 66178-66179. Location: DOC, Hoover Building, Room 6087B, 14th Street between Constitution and Pennsylvania Avenues, NW.

9:30 - 11:00 AM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "The Impact of Cloud Computing On Developing Economies". The speakers will be Robert Atkinson (ITIF), Peter Cowhay (UC San Diego), Bernard McKay (Intuit), and Ken Zita (Network Dynamics). See, notice. Location: ITIF/ITIC, Suite 610A, 1101 K St., NW.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast and teleconferenced panel discussion titled "Kirtsaeng v. John Wiley & Sons, A Post Supreme Court Oral Argument Review". The speakers will be Andrew Berger (Tannenbaum Helpern) and Scott Bain (SIIA). Prices vary. CLE credits. See, notice.

5:00 PM. The University of Maryland's (UM) Cyber Security Center will host a presentation by Wenke Lee (Georgia Tech School of Computer Science). This event is free, and open to the public, but registration is required. See, notice. Location: UM, Computer Science Instructional Center, Room 1115, MD.

6:30 - 10:00 PM. The Federal Communications Bar Association (FCBA) will host an event titled "23rd Annual Charity Auction". For more information, contact Brendan Carr at brendantcarr at gmail dot com or Kerry Loughney at kerry at fcba dot org. Location: Capital Hilton, 1001 16th St., NW.

The House will meet at 1:00 PM in pro forma session.

The Senate will meet at 10:00 AM in pro forma session.

12:00 NOON - 1:30 PM. The DC Bar Association will host a presentation titled "iPad for the Litigating Attorney". The speaker will be Judge Herbert Dixon (D.C. Court's Technology Enhanced Courtroom Pilot Project). Free. No CLE credits. For more information, call Daniel Mills at 202-626-1312. The DC Bar has a history of barring reporters from its events. Register by sending an e-mail to dmills at dcbar dot org. See, notice. Location: DC Bar Conference Center, 1101 K St., NW.

5:00 PM. Deadline to submit comments to the Department of Commerce's (DOC) National Oceanic and Atmospheric Administration's (NOAA) Science Advisory Board regarding its draft report [21 pages in PDF] titled "A Review of NOAA’s Future Satellite Program: A Way Forward". See, notice in the Federal Register, Vol. 77, No. 196, October 10, 2012, at Page 61573.

5:00 PM. Extended deadline to submit comments to the National Telecommunications and Information Administration (NTIA) in response to its notice in the Federal Register that requests comments regarding the creation of the interoperable public safety broadband network by the First Responder Network Authority, or FirstNet, as required by the spectrum bill enacted in February. The original deadline was November 1. See, original notice in the FR, Vol. 77, No. 193, October 4, 2012, at Pages 60680-6068. The extended deadline is November 9. See, NTIA notice. See also, story titled "NTIA Releases Public Safety Network NOI" in TLJ Daily E-Mail Alert No. 2,458, October 4, 2012.

Veterans Day.

Veterans Day observed. This is a federal holiday. See, OPM list of 2012 federal holidays.

12:00 NOON - 1:00 PM. The American Bar Association (ABA) will host a teleconferenced panel discussion titled "Discovery by Leaps and Bounds: Practical Issues in International Antitrust Cases". The speakers will be Scott Martin (Greenberg Traurig), Hollis Salzman (Labaton Sucharow), and Belinda Hollway (Freshfields Bruckhaus Deringer). Prices vary. No CLE credits. See, notice.

The Senate will return from its elections recess at 2:00 PM.

9:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Materials Processing Technical Advisory Committee will hold a partially closed meeting. See, notice in the Federal Register, Vol. 77, No. 211, October 31, 2012, at Page 65857. Location: DOC, Hoover Building, Room 3884, 14th Street between Constitution & Pennsylvania Avenues, NW.

9:00 AM - 3:00 PM. The Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health Information Technology's (ONCHIT) HIT Standards Committee will meet. Open to the public. See, notice in the Federal Register, Vol. 77, No. 210, October 30, 2012, at Page 65691. Location: Dupont Circle Hotel, 1500 New Hampshire Ave., NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in NetCoalition v. SEC, App. Ct. No. 10-1421. This is a challenge to NYSE Arca fees for market data brought by the NetCoalition and the Securities Industry and Financial Markets Association (SIFMA). See, petitioner's brief. The NetCoalition is winding down its operations, but its members include Bloomberg, Yahoo, Google and others. This is the first case on the calendar. Judges Sentelle, Henderson and Rogers will preside. Location: USCA Courtroom, 5th floor, Prettyman Courthouse, 333 Constitution Ave., NW.

1:00 - 2:00 PM. The law firm of Fulbright Jaworski will host a webcast panel discussion titled "Ethical Considerations Involved in the In-house Counsel or Private Practitioner’s Use of the Internet and Social Media". The speakers will be Shafeeqa Giarratani (FJ), Colleen Dorsey (Land O'Lakes, Inc.), Richard Painter (University of Minnesota Law School), and Barbara D’Aquila (FJ). For more information, contact Katie Potter at kpotter at fulbright dot com.

TIME? The Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) will hold another in a series of meetings regarding consumer data privacy in the context of mobile applications. See also, NTIA web page titled "Privacy Multistakeholder Process: Mobile Application Transparency". This event will be webcast.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Broadband and Engineering and Technical Committees will host a brown bag lunch titled "Broadband Innovation". Free. No CLE credits. Location: NAB, 1771 N St., NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Gresham Communications, Inc. v. FCC, App. Ct. No. 11-1343. This is an appeal of a Memorandum Opinion and Order of the FCC regarding involuntary transfer of licenses of delinquent debtor licensees. See, FCC brief 39 pages in PDF]. Judges Sentelle, Henderson and Rogers will preside. This is the first of three items on the Court's agenda. Location: USCA Courtroom, 5th floor, Prettyman Courthouse, 333 Constitution Ave., NW.

10:00 AM. The House Science Committee's (HSC) Subcommittee on Technology and Innovation will hold a hearing titled "Is ``Meaningful Use´´ Delivering Meaningful Results?: An Examination of Health Information Technology Standards and Interoperability". The witnesses will be Farzad Mostashari (DHHS National Coordinator for Health Information Technology), Charles Romine (NIST), Marc Probst (Intermountain Healthcare), Rebecca Little (Medicity), and Willa Fields (San Diego State University School of Nursing). The HSC will live webcast this hearing. See, notice. Location: Room 2318, Rayburn Building.

10:00 AM - 12:00 NOON. The American Enterprise Institute (AEI) will host a panel discussion titled "Should the UN Control the Internet?". The World Conference on International Telecommunications (WCIT) will commence in Dubai on December 3. The speakers will be Terry Kramer (Ambassador, head of the US delegation to the WCIT), Fiona Alexander (NTIA), Leonard Cali (AT&T), David Gross (Wiley Rein), Ross LaJeunesse (Google), Robert McDowell (FCC Commissioner), and Jeffrey Eisenach (AEI). See, notice. Location: 12th floor, 1150 17th St., NW.

10:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Materials Technical Advisory Committee will hold a partially closed meeting. See, notice in the Federal Register, Vol. 77, No. 211, October 31, 2012, at Page 65857. Location: DOC, Hoover Building, Room 3884, 14th Street between Constitution & Pennsylvania Avenues, NW.

10:00 AM. The U.S. China Economic and Security Review Commission will host a news conference to release its 2012 annual report to Congress. See, original notice in the Federal Register (FR), Vol. 77, No. 143, July 25, 2012, at Pages 43662-43663; further notice in the FR, Vol. 77, No. 171, September 4, 2012, at Pages 53965-53966; and further notice in the FR, Vol. 77, No. 214, November 5, 2012, at Pages 66503-66504. Location: Room 538, Dirksen Building, Capitol Hill.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Public Notice (PN) [MS Word] regarding access technology and enhanced database operations for video relay service (VRS). The FCC released this PN on October 15, 2012. It is DA 12-1644 in CG Docket Nos. 03-123 and 10-51. See also, notice in the Federal Register, Vol. 77, No. 209, October 29, 2012, at Pages 65526-65530.

? 10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. See, notice. Location: Room 226, Dirksen Building.

10:00 - 11:30 AM. The Heritage Foundation (HF) will host a panel discussion titled "The Impact of Sequestration on American Interests in Asia". The speakers will be Rep. Buck McKeon (R-CA) (Chairman of the House Armed Services Committee), Donald Winter, Michael McDevitt (Center for Naval Analyses), Bruce Klingner (HF). Free. Open to the public. The HF will live webcast this event. See, notice. Location: HF, 214 Massachusetts Ave., NE.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) Wireline Committee will host a presentation titled "High Cost and Low-Income USF Reform One Year Later: A Progress Report". The speakers will be __. CLE credits. See, notice. Location: Davis Wright Tremaine, Suite 800, 1919 Pennsylvania Ave., NW.

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