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Wednesday, November 14, 2012, Alert No. 2,473.
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Senate Again Rejects Cloture on Bill to Impose Cyber Security Regulatory Regime

11/14. The Senate rejected a motion to invoke cloture on S 3414 [LOC | WW | PDF], the "Cybersecurity Act of 2012", by a vote of 51-47, late on Wednesday, November 14. See, Roll Call No. 202.

The Senate rejected a cloture motion on the same bill, with an almost identical roll call vote, on August 2. See, Roll Call No. 187. That motion failed by a vote of 52-46. A super majority of 60 is required to pass a cloture motion.

The outcome of the November 14 vote was not in doubt. Rather, Sen. Harry Reid (D-NV), the Senate Majority Leader, may seek to create a record that President Obama will reference if he issues an executive order that attempts to establish a cyber security regulatory regime.

Sen. Reid stated in a release after the vote that "Given Republican intransigence, I hope President Obama uses all the authority of the executive branch at his disposal to fully protect our nation from the cyber security threat. Republicans today showed we cannot count on them to take this threat seriously."

Sen. John Rockefeller (D-WV) stated in a release after the vote that "Once again, Senate Republicans have chosen to filibuster much-needed cybersecurity legislation".

Sen. Charles Grassley (R-IA) stated in the Senate that "No one disputes the need for Congress to address cybersecurity. However, members do disagree with the notion this problem requires legislation that increases the size of the federal government bureaucracy and places new burdens and regulation on businesses."

He continued that "Disagreements over policy should be openly and freely debated. Unfortunately, this isn’t how the debate on cybersecurity proceeded. Instead, before a real debate began last August, the majority cut it off. This was contrary to the majority’s promise earlier this year of an open amendment process to address cybersecurity."

Sen. Grassley also took issue with the bill's delegation of authority to the Department of Homeland Security (DHS). He reviewed the DHS's recent performance in implementing the Chemical Facility Anti-Terrorism Standards (CFATS) program. He then stated, "I'm baffled why the Senate would take an agency that has proven problems with overseeing critical infrastructure, and give them chief responsibility for our country's cybersecurity."

And, he complained about the failure to follow Senate procedure -- particularly the lack of a "full and open amendment process".

Sen. Kay Hutchison (R-TX) stated that the lack of debate and an amendment process "is unacceptable because though we have worked diligently with the sponsors of the cybersecurity bill on the floor, a number of ranking members of the relevant committees that have jurisdiction over cybersecurity have an alternative bill, the SECURE IT Act, that we would like to be able to put forward as an alternative or have an amendment process that would allow our approach to have a chance to prevail anyway." See, release.

See also, Business Software Alliance (BSA) release.

Analysis of Vote. Expectedly, the roll call votes on August 2 and November 14 were almost identical. Not only were the totals almost the same, but almost all individual Senators voted the same way in both votes.

For the most part, Democrats voted to invoke cloture, and Republicans voted against invoking cloture.

Four Republicans backed President Obama and voted yes both times: Sen. Scott Brown (R-MA), Sen. Susan Collins (R-ME), Sen. Olympia Snowe (R-ME) and Sen. Richard Lugar (R-IN). Notably, all but Sen. Collins are now lame duck Senators, who will not return for the 113th Congress in January.

Five Democrats defied President Obama and the Senate Democratic leadership, and voted no both times: Sen. Jon Tester (D-MT), Sen. Max Baucus (D-MT), Sen. Mark Pryor (D-AR), Sen. Jeff Merkley (D-OR), and Sen. Ron Wyden (D-OR) voted no both times. All five will return for the 113th Congress.

Two Senators switched their votes, in opposite directions. Sen. Dan Coats (R-IN) voted yes on August 2, and no November 14. Sen. Harry Reid (D-NV), the Senate Majority Leader, voted no on August 2, but only to preserve his procedural right to bring a motion to reconsider. He voted yest on November 14.

Sen. Mark Kirk (R-IL) and Sen. Marco Rubio (R-FL) did not vote on August 2. Sen. Daniel Inouye (D-HI) and Sen. Kirk did not vote on November 14. Sen. Rubio voted no on November 14, while Sen. Inouye voted yes on August 2.

There is no reason, based on the August 2 and November 14 votes, and the results of the November 6 Senate elections, to expect that President Obama and Sen. Reid could garner 60 votes to invoke cloture to obtain an up or down vote without further process in the 113th Congress.

See also, story titled "Senate Rejects Cloture on Sen. Lieberman's Cyber Security Bill" in TLJ Daily E-Mail Alert No. 2,419, August 3, 2012.

Summary of S 3414 and Competing Bills. Title I of S 3414 would impose a new regulatory regime on private sector entities to be specified by regulators. The bill would give the federal government authority to impose cyber security standards on such companies and other entities. Much of the opposition to this bill, both inside and outside the Senate, derives from this Title I.

However, S 3414 would also create end runs around the 4th Amendment, 5th Amendment due process, the Wiretap Act, Stored Communications Act, state wiretap laws, and generally, individuals' and business's legitimate expectations of privacy in electronic communications and stored data. Some Senators, such as Sen. Wyden, oppose the bill for this reason.

See also, story titled "Summary of S 3414" and related stories in TLJ Daily E-Mail Alert No. 2,415, July 30, 2012.

Sen. Lieberman did not introduce this bill until July 19. Moreover, it is 214 pages long, complex, technical, and on some topics, vague or incomplete. On August 2 Senators had not yet had time to study the bill, and receive input from constituents and affected entities. The only thing that changed for the November 14 vote was time available to study the bill.

What has remained unchanged is the text of the bill, and the closed process that Sen. Reid has imposed upon the Senate. There have been committee hearings, no committee markups, no opportunity to consider alternative proposals, and no opportunity to amend the bill on the Senate floor.

There is a competing bill with much support that Sen. Reid will not bring up on the floor, S 2151 [LOC | WW], the "Secure IT Act", sponsored by Sen. John McCain (R-AZ). This bill would not impose government mandates.

Also, the House has already passed a bill, HR 3523 [LOC | WW], the "Cyber Intelligence Sharing and Protection Act" or "CISPA", which Sen. Reid will not bring up on the floor. The CISPA is a limited bill, directed at incenting cyber threat information sharing, in part by providing immunities. CISPA would not provide create a new government regulatory regime.

For more on the CISPA, see:

House Republicans Elect Leadership for 113th Congress

11/14. House Republicans met to elect its leaders for the 113th Congress. Rep. John Boehner (R-OH) will once again be the Republican candidate for Speaker of the House. See, Rep. Boehner's release. His election in January is a formality.

Rep. Eric Cantor (R-VA) was re-elected House Majority Leader. He stated in a release that "we went through a tough week last week as a party, but clearly the House majority is intact and we are strong".

Rep. Kevin McCarthy (R-CA) was re-elected House Majority Whip.

Rep. Pete Sessions (R-TX) will be the Chairman of the House Rules Committee (HRC). See, Rep. Sessions' release. The current Chairman, Rep. David Dreier (R-CA), did not run for re-election to the House.

Rep. Kathy Rodgers (R-WA) was elected Conference Chairman. See, Rep. Rodgers' release. She defeated Rep. Tom Price (R-GA).

Rep. Greg Walden (R-OR) was elected Chairman of the National Republican Campaign Committee (NRCC). Rep. Walden is also the Chairman of the House Commerce Committee's (HCC) Subcommittee on Communications and Technology. Rep. Walden stated in a release that he "will also remain as chairman of the House subcommittee that oversees communications and technology policy in the House".

Rep. Sessions was Chairman of the NRCC for the 112th Congress.

The NRCC is responsible for electing Republicans to the House in the 2014 elections. Hence, Rep. Walden will be fund raising, recruiting candidates, providing assistance to candidates, and generally working to maintain and expand the Republican majority in the House.

Rep. James Lankford (R-OK) was elected Policy Committee Chairman, Rep. Lynn Jenkins (R-KS) was elected Conference Vice-Chair, Rep. Virginia Foxx (R-NC) was elected Conference Secretary, Rep. Tim Scott (R-SC) was elected Sophomore Representative, and Rep. elect Ann Wagner (R-MO) was elected Freshman Representative.

Rep. Sensenbrenner Seeks Chairmanship of House Science Committee

11/7. Rep. James Sensenbrenner (R-WI) announced in a release that he now seeks the Chairmanship of the House Science Committee (HSC).

Rep. Lamar Smith (R-TX) has not yet publicly announced his candidacy. However, he is a senior member of the HSC, and he is term limited from continuing as Chairman of the House Judiciary Committee (HJC).

Rep. James SensenbrennerRep. Sensenbrenner (at right) stated that his priorities include science, technology, engineering and mathematics (STEM) education. He also stated that "The Obama Administration has shown its willingness to manipulate science for political ends and threaten our domestic energy production and our economy in the process. I have a record of effective oversight, and I will continue to keep the Administration accountable for their use of science in crafting regulations and policies."

Rep. Sensenbrenner's district does not include the University of Wisconsin at Madison. However, it is nearby, and is home to many scientists associated with the University. Rep. Sensenbrenner has long advocated their interests in legislative debates regarding patent law. Rep. Sensenbrenner is also a member of the House Judiciary Committee (HJC), which has jurisdiction over patent law.

Rep. Ralph Hall (R-TX), the current Chairman of the HSC, was also the ranking Republican on the HSC in the 110th and 111th Congresses. House Republican rules limit committee leaders to three terms.

Rep. Sensenbrenner served as Chairman of the HSC during the 105th and 106th Congresses. He then served as Chairman of the HJC during the 107th, 108th and 109th Congresses. He is currently Chairman of the HJC's Subcommittee on Crime, Terrorism, and Homeland Security.

More People and Appointments

11/14. Rep. Nancy Pelosi (D-CA) announced that she will run for Democratic Majority Leader for the 113th Congress. See, transcript.

11/14. Senate Republicans held a closed meeting at which they re-elected Sen. Mitch McConnell (R-KY) to be Senate Minority Leader for the 113th Congress. Sen. John Cornyn (R-TX) was elected Senate Minority Whip, Sen. Jerry Moran (R-KS) was elected Chairman of the National Republican Senatorial Committee (NRSC). Sen. elect Ted Cruz (R-TX) was elected NRSC Vice Chairman for grass-roots organizing. Sen. Rob Portman (R-OH) was elected NRSC Vice Chairman for fundraising. Sen. John Thune (R-SD) was elected Conference Policy Chairman, and Sen. Roy Blunt (R-MO) was elected Vice Chairman. Sen. John Barrasso (R-WY) was elected Policy Committee Chairman.

11/14. Senate Democrats held a closed meeting at which they re-elected Sen. Harry Reid (D-NV) to be Senate Majority Leader for the 113th Congress.

11/12. Microsoft announced in a release that Steven Sinofsky, President of Windows and Windows Live, will leave Microsoft, and that Julie Green "will be promoted to lead all Windows software and hardware engineering". Also, Tami Reller remains CFO and Chief Marketing Officer and "will assume responsibility for the business of Windows". Microsoft released Windows 8 to manufacturers on August 1, 2012, and to the public on October 26, 2012.

In This Issue
This issue contains the following items:
 • Senate Again Rejects Cloture on Bill to Impose Cyber Security Regulatory Regime
 • House Republicans Elect Leadership for 113th Congress
 • Rep. Sensenbrenner Seeks Chairmanship of House Science Committee
 • More People and Appointments
 • More News
Washington Tech Calendar
New items are highlighted in red.
Thursday, November 15

The House will meet at 10:00 AM. It will consider HRes 808, a resolution providing for the consideration of HR 6156 [LOC | WW], the "Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012".

The Senate will meet at 9:00 AM. It is scheduled to vote on the motion to invoke cloture on S 3525 [LOC | WW], the "Sportsmen Act of 2012".

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

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 (University of Michigan), 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.

12:15 - 1:30 PM. The Federal Communications Commission (FCC) will host a meeting titled "Results of the FCC’s Mobility Fund Phase I Auction: Using a Market-Based Approach to Distribute High Cost Universal Service Support. Speakers". The speakers will be Jane Jackson ( Associate Chief of the FCC' Wireless Telecommunications Bureau) and Margaret Wiener (Chief of the FCC's Wireless Telecommunications Bureau's Auctions and Spectrum Access Division). The FCBA states that this is a brown bag lunch of its Wireless Telecommunications Committee. Location: Hogan Lovells, Moot Court Room, Lower Level, 555 13th St., NW.

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

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 Jennifer Ullman (FCC/USAC), Jeff Lanning (CenturyLink), David LaFuria (Lukas Nace Gutierrez & Sachs), Danielle Frappiere (Davis Wright Tremaine), and Steve Augustino (Kelley Drye & Warren). CLE credits. See, notice. Location: Davis Wright Tremaine, Suite 800, 1919 Pennsylvania Ave., NW.

Friday, November 16

The House will meet at 9:00 AM.

8:30 AM. The National Press Club (NPC) will host a panel discussion titled "Get It Online: The Online Election -- Social Media and the 2012 Presidential Race". The speakers will be David Almacy (Edelman), Colin Delany (, Alex Howard (O'Reilly Media), Emily Schulthe (Politico), and Anthony Shop (Social Driver). The price to attend is $10. Tickets required. See, notice. Location: NPC, 13th floor, 529 14th St., NW.

9:00 AM - 3:00 PM. The Department of Commerce's (DOC) Bureau of Economic Analysis's (BEA) BEA Advisory Committee will meet. See, notice in the Federal Register, Vol. 77, No. 194, October 5, 2012, at Pages 60965-60966. Location: BEA, 1441 L St., NW.

9:30 AM - 12:00 NOON. The New America Foundation (NAF) will host an event titled "Dark Money, Media and the 2012 Campaign". The speakers will include Michael Copps, Matea Gold (Los Angeles Times), Ellen Miller (Sunlight Foundation), Jason Reifler (Georgia State University), Craig Aaron (Free Press), and Mark Lloyd (NAF). See, notice. Location: NAF, Suite 400, 1899 L St., NW.

Deadline to submit comments to the Office of the U.S. Trade Representative (OUSTR) regarding the complaint (request for consultations) filed by the U.S. on September 18 with the World Trade Organization (WTO) against the People's Republic of China (PRC) alleging violation of WTO obligations in connection with PRC government imposition of countervailing and anti-dumping duties on automobiles exported by the U.S. See, notice in the Federal Register , Vol. 77, No. 197, October 11, 2012, at Pages 61818-61819.

Monday, November 19

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Video Programming and Distribution Committee will host a brown bag lunch titled "Sky Angel and Beyond: Are Online Video Providers MVPDs under the Communications Act?" The speakers will be Matthew DelNero (Covington & Burling), Charles Naftalin (Holland & Knight), and Michael Schooler (NCTA). Location: Wiley Rein, 1776 K St., NW.

1:00 - 3:00 PM. The Department of Homeland Security's (DHS) Federal Emergency Management Agency's (FEMA) National Advisory Council will meet by teleconference. Open to the public. See, notice in the Federal Register, Vol. 77, No. 214, November 5, 2012, at Page 66476.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) Broadband Committee will host an event titled "IP Interconnection: What Is It? What Does It Mean? And What Is the Law?" The speakers will include Chris Savage (Davis Wright Tremaine), Richard Shockey, Jeff Lanning (Century Link), Hank Hultquist (AT&T Services, Inc.), Michael Pryor (Dow Lohnes), Howard Symons (Mintz Levin), Jon Nuechterlein (Wilmer Hale). CLE credits. Prices vary. See, notice. Location: Dow Lohnes, Suite 800, 1200 New Hampshire Ave., NW.

Deadline for the U.S. International Trade Commission (USITC) to submit its report to the Office of the U.S. Trade Representative (OUSTR) regarding the probable economic effect of providing duty free treatment for imports under the U.S. Trans Pacific Partnership Free Trade Agreement. See, notice in the Federal Register, Vol. 77, No. 155, August 10, 2012, at Pages 47880-47882.

Deadline to submit comments to the Federal Trade Commission (FTC) regarding the proposed consent agreement with Compete, Inc. regarding the use of web tracking software. This administrative proceeding is FTC File No. 102 3155. See also, FTC complaint, release, and notice in the Federal Register, Vol. 77, No. 209, October 29, 2012, Pages 65550-65552.

Tuesday, November 20

8:00 - 10:00 AM. Broadband Census News LLC will host a panel discussion titled "International Telecommunications Union Meeting and the Global Open Internet". The speakers will be __. Breakfast will be served. This event is open to the public. The price to attend is $47.12. See, notice and registration page. This event is also sponsored by Comcast, Google, ICF Intl., NCTA TIA, and US Telecom. Location: Clyde's of Gallery Place, 707 7th St., NW.

TIME? The National Science Foundation's (NSF) Networking and Information Technology Research and Development National Coordination Office's Large Scale Networking Coordinating Group's Joint Engineering Team will meet. See, notice in the Federal Register, Vol. 77, No. 183, September 20, 2012, at Pages 58415-58416. Location: NSF, 4201 Wilson Boulevard, Arlington, VA.

Wednesday, November 21

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Wireless Telecommunications Bureau's (WTB) and Office of Engineering and Technology's (OET) Public Notice (PN) [8 pages in PDF] regarding refreshing the record in its wireless microphones proceedings. See, January 2010 R&O and FNPRM [103 pages in PDF] (FCC 10-16). The FCC released this PN on October 5, 2012. It is DA 12-1570 in WT Docket Nos. 08-166 and 08-167 and ET Docket No. 10-24. See also, notice in the Federal Register, Vol. 77, No. 204, October 22, 2012, at Pages 64446-64450. See also, 2008 NPRM and Order (FCC 08-188) and story titled "FCC Releases NPRM on Wireless Microphones Operating in 700 MHz Band" in TLJ Daily E-Mail Alert No. 1,817, August 21, 2008. See also, story titled "FCC Seeks More Comments on Wireless Microphones" in TLJ Daily E-Mail Alert No. 2,466, October 23, 2012.

Thursday, November 22

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

More News

11/14. The U.S. China Economic and Security Review Commission released its 2012 annual report [509 pages in PDF] to the Congress.

11/14. The U.S. Court of Appeals (DCCir) heard 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].

11/13. The New America Foundation (NAF) hosted an event titled "Future of Music Summit". Sen. Ron Wyden (D-OR) advocated passage of his bill, S 3609 [LOC | WW], the "Internet Radio Fairness Act of 2012". He stated, in response to questions, that if lawyers can agree that Section 5 of the bill, regarding antitrust exemptions, violates freedom of speech, then it should be revisited.

11/8. The Copyright Office (CO) published a notice in the Federal Register (FR) that announces, describes, recites, and set the effective date for, interim rules regarding registration of copyrights. These changes allow groups of related serial issues to be filed through the CO's electronic registration system, and allow applicants for groups of related serials, in certain circumstances, to mail physical deposit copies of the serial issues upon submitting an electronic application and payment, when electronic deposit copies do not exist. The effective date is November 8, 2012. This notice contains no request for comments. See, FR, Vol. 77, No. 217, November 8, 2012, at Pages 66920-66921.

11/7. The Department of Commerce's (DOC) Bureau of Industry and Security (BIS) published a notice in the Federal Register (FR) that announces, describes, recites, and sets the comment deadline for, it proposed rules changes pertaining to voluntary self disclosures (VSD) of violations of the Export Administration Regulations (EAR). The deadline to submit comments is January 7, 2013. See, FR, Vol. 77, No. 216, November 7, 2012, at Pages 66777-66780.

11/5. The U.S. Court of Appeals (DCCir) heard oral argument in Northern Valley Communications v. FCC, App. Ct. No. 11-1467. This is petition for review of an order of the Federal Communications Commission (FCC) regarding access charges for completing long distance calls. AT&T, Verizon, Sprint and Qwest have intervened. Northern Valley, a small local exchange carrier in northeastern South Dakota, wants to change long distance companies to complete calls to its non-paying customers, contrary to FCC rules (47 C.F.R. § 61.26). See, FCC brief [77 pages in PDF].

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