1/15. Rep. Richard Nugent (R-FL) introduced HR 294 [LOC | WW], an untitled bill that would clarify that an  executive order (EO) issued by President Obama last July regarding "national security" and "emergency communications preparedness" does not give the Department of Homeland Security (DHS) regulatory authority over commercial or privately owned networks or service providers.

President Obama issued his broadly and vaguely worded Executive Order 13618 on July 6, 2012. It was published in the Federal Register (FR) on July 11, 2012. See, FR, Vol. 77, No. 133, July 11, 2012, at Pages 40779-40783.

This EO assigns responsibilities to various executive branch entities with respect to "national security" and "emergency preparedness" communications, also known as NS/EP.

This EO also purports to give the DHS regulatory authority over privately owned communications companies. This EO does not cite any authority for this provision, other than "the Constitution and the laws of the United States".

There is such authority. This represents an attempt by President Obama to expand executive powers by EO. President Obama has also threatened to impose a cyber security regulatory regime by EO.

Section 5.2 of the EO provides that "The Secretary of Homeland Security shall ... (e) satisfy priority communications requirements through the use of commercial, Government, and privately owned communications resources ..."

This bill states that "Section 5.2(e) of Executive Order 13618 ... is revoked to the extent that it refers to communications resources that are privately owned."

It adds that "No agency or instrumentality of the Federal Government may satisfy priority communications requirements (as such term is used in section 5.2(e) of Executive Order 13618) through the use of privately owned communications resources, and no funds appropriated pursuant to any provision of law may be used to take any action that expands the authority of the Federal Government to control privately owned communications resources."

This bill was referred to the House Commerce Committee (HCC). Rep. Nugent is not a member.

1/4. Rep. Tim Griffin (R-AR) and Rep. Kerry Bentivolio (R-MI) introduced HR 176 [LOC | WW], the "Stop Taxpayer Funded Cell Phones Act of 2011".

This bill would amend 47 U.S.C. § 254 to prevent the Federal Communications Commission (FCC) from using universal service taxes to subsidize commercial mobile service providers through its Lifeline program. This bill would not affect other FCC universal service programs.

The FCC Lifeline program subsidizes landline and cell phone service for low income customers -- those with annual incomes at or below 135 percent of the Department of Health and Human Services' (DHHS) poverty guidelines.

The FCC also has a Lifeline pilot program for broadband service. Although, it exceeds statutory authority. Section 254 and 47 U.S.C. § 214(e) limit universal service subsidies to a "common carrier" and "telecommunications carriers" providing "telecommunications services".

There have been legislative proposals to expand the FCC Lifeline subsidies to include broadband. See for example, HR 3646 [LOC | WW], the "Broadband Affordability Act of 2009" in the 111th Congress, and HR 2163 [LOC | WW], the "Broadband Affordability Act of 2011" in the 112th Congress, both introduced by Rep. Doris Matsui (D-CA). See also, story titled "Rep. Matsui Introduces Bill to Expand FCC Lifeline Universal Service Subsidies to Cover Broadband" in TLJ Daily E-Mail Alert No. 1,993, September 30, 2009.

HR 176 states that "A provider of commercial mobile service may not receive universal service support under sections 214(e) and 254 of the Communications Act of 1934 (47 U.S.C. 214(e); 254) for the provision of such service through the Lifeline program of the Federal Communications Commission."

Rep. Griffin introduced a substantially identical bill in the 112th Congress, HR 3481 [LOC | WW], the "Stop Taxpayer Funded Cell Phones Act of 2011". In reintroducing the bill, he did not update the year of the bill from 2011 to 2013. He introduced HR 3481 on November 18, 2011. It was referred to the House Commerce Committee (HCC), and its Subcommittee on Communications and Technology. There were no hearings or markups of that bill during the 112th Congress. However, that bill eventually had 20 cosponsors.

The just introduced bill was also referred to the HCC. Neither Rep. Griffin nor Rep. Bentivolio are members.

1/4. Rep. Jose Serrano (D-NY) introduced HR 210 [LOC | WW], an untitled bill that would require retail establishments that use mobile device tracking technology to display notices.

This bill would provide that "A person who owns or operates a retail establishment and uses mobile device tracking technology in such establishment shall display in a prominent location in such establishment a notice that such technology is in use and that individuals can avoid being tracked by turning off their mobile devices."

The Federal Communications Commission (FCC) is the federal agency with authority to regulate communications. However, in recent years, it has done very little to protect consumer privacy, and much that reduces privacy, particularly in mobile communications. Hence, this bill would give regulatory authority to the Federal Trade Commission (FTC).

This bill states that "A violation of section 1(a) or a regulation promulgated pursuant to section 1(b) shall be treated as an unfair or deceptive act or practice in violation of a regulation under section 18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)) regarding unfair or deceptive acts or practices."

It defines a "mobile device" as "mobile telephone" or "any device that uses or provides access to commercial mobile data service", as defined by Section 6001 of the spectrum bill enacted in 2012. See, HR 3630 [LOC | WW], the "Middle Class Tax Relief and Job Creation Act of 2012".

This bill would give the FTC authority to write implementing rules, pursuant to Administrative Procedure Act (APA) process, which is codified 5 U.S.C. § 553.

It was referred to the House Commerce Committee (HCC). Rep. Serrano is not a member.

1/3. Rep. Marcy Kaptur (D-OH) introduced HR 128 [LOC | WW], the "Fairness in Political Advertising Act of 2013". This bill would amend the Communications Act to compel television broadcasters and cable operators to broadcast or carry ads of state and federal political candidates, without compensation.

It would amend 47 U.S.C. §§ 309 and 315 to require that TV broadcasters broadcast two hours of political ads for every "qualified political candidate" for statewide or federal office. The bill further mandates that at least half of the free ads be broadcast between 7:00 and 10:00 PM. It places a cap of four and one half hours per week of compelled free advertising.

It would also amend 47 U.S.C. § 531 by adding the following: "A cable operator shall annually make available free cable time for political advertising in accordance with the requirements of regulations prescribed by the Commission. Such regulations shall, to the extent practicable, require each such cable operator to provide such free cable time in the same amounts and manner, to the same eligible political candidates, and subject to the same conditions as free broadcast time is required to be provided by television broadcast station licensees under section 315(c) of the Act. No franchise authority shall renew the franchise of any cable operator that fails to comply with such regulations, but such operator shall not be subject to any other sanction or remedy for such failure or refusal."

The bill would compel free advertising for a potentially huge number of persons. It provides that a person is a "qualified political candidate" for the purposes of this bill if such person is a candidate for either a statewide or federal office, it is an even numbered year, and that person's political party "received more than 2 percent of the total number of votes" in the most recent statewide or federal election.

This bill, if enacted with this minimal standard, would encourage persons to register as candidates for office, in order to obtain the two hours of free advertising from every TV broadcaster and cable operator in the area.

It would be very easy to qualify for free ads under this standard. For example, in Rep. Kaptur's state of Ohio, to become a candidate for Governor, Lieutenant Governor or other statewide office, the requirements are minimal, and the fees total $150. The fees to run for U.S. Representative are $85. See, R.C. 3513.10.

This bill was referred to the House Commerce Committee (HCC). In the state of Oregon, which is represented by the Chairman of the HCC's Subcommittee on Communications and Technology, Rep. Greg Walden (R-OR), the requirements to run for U.S. Representative are submitting Oregon form SEL 101 and paying the $100 filing fee.

In Rep. Anna Eshoo's (D-CA) state of California the filing fee to run for U.S. Representative is "One percent of the first-year salary for the office of Representative in Congress", or nothing, if the candidate submits a petition signed by 3,000 voters. See, California Elections Code §§ 8100-8107.

Basically, in many states, for the cost of filling out a form and paying a token filing fee, one could qualify for free advertising under Rep. Kaptur's bill. This would encourage people to register as candidates for the sole purpose of obtaining free advertising of their political views. It would likely also be exploited by persons seeking to indirectly advertise their businesses.

Rep. Kaptur introduced a substantially identical bill at the beginning of the 112th Congress, HR 137 [LOC | WW], the "Fairness in Political Advertising Act of 2011".

HR 128 was referred to the HCC. Rep. Kaptur is not a member. There are no original cosponsors of this bill.

It is highly unlikely that the Congress will pass this bill.

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

The Senate will meet at 2:00 PM.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Versata Software v. SAP America, App. Ct. No. 2012-1029, an appeal from the U.S. District Court (EDTex) in a software patent infringement case. Location: Courtroom 402.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Mondis Technology v. Hon Hai Precision Industry, App. Ct. No. 2012-1208. Location: Courtroom 203.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Biax v. Nvidia, App. Ct. No. 2012-1387. Location: Courtroom 201.

12:00 NOON - 1:30 PM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "Perspectives on Global Enterprises, Corporate Location Decisions, and U.S. Policy Challenges". The speakers will be Jennifer Daniels (NCR Corporation), Don Rosenberg (Qualcomm General Counsel) and Robert Atkinson (ITIF). See, notice. Location: Reserve Officers Association, 5th Floor, One Constitution Ave., NE.

EXTENDED TO MARCH 4. 5:00 PM. Deadline to submit reply comments to the Copyright Office (CO) in response to its notice of inquiry (NOI) titled "Orphan Works and Mass Digitization". See, notice in the Federal Register, Vol. 77, No. 204, October 22, 2012, at Pages 64555-64561. See also, story titled "Copyright Office Issues Notice of Inquiry on Orphan Works" in TLJ Daily E-Mail Alert No. 2,468, November 2, 2012. See, extension notice in the Federal Register, Vol. 77, No. 231, November 30, 2012 at Page 71452.

EXTENDED FROM JANUARY 4. 5:00 PM. Extended deadline to submit initial comments to the Copyright Office (CO) in response to its notice of inquiry (NOI) titled "Orphan Works and Mass Digitization". See, notice in the Federal Register, Vol. 77, No. 204, October 22, 2012, at Pages 64555-64561. See also, story titled "Copyright Office Issues Notice of Inquiry on Orphan Works" in TLJ Daily E-Mail Alert No. 2,468, November 2, 2012. See, extension notice in the Federal Register, Vol. 77, No. 231, November 30, 2012 at Page 71452.

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

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Triangle Software v. Garmin, App. Ct. No. 2012-1275, an appeal from the U.S. District Court (EDVa) in a patent infringement case involving vehicle navigation technology. Location: Courtroom 402.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Clear With Computers v. Hyundai, App. Ct. No. 2012-1291. Location: Courtroom 203.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in K-Tech v. Time Warner and K-Tech v. Directv, App. Ct. Nos. 2012-1425 and 2012-1446. Location: Courtroom 203.

TIME CHANGE. 10:00 AM. 10:15 AM. The House Judiciary Committee (HJC) will hold a hearing titled "America's Immigration System: Opportunities for Legal Immigration and Enforcement of Laws against Illegal Immigration". The witnesses will be __. See, notice. Location: Room 2141, Rayburn Building.

10:30 AM. The House Commerce Committee's (HCC) Subcommittee on Communications and Technology and the House Foreign Affairs Committee's (HFAC) Subcommittee on Terrorism, Nonproliferation, and Trade and Subcommittee on Africa, Global Health, Global Human Rights, and International Organizations will hold a joint hearing titled "Fighting for Internet Freedom: Dubai and Beyond". The witnesses will be Robert McDowell (FCC Commissioner), David Gross (Wiley Rein), Sally Wentworth (Internet Society), and Harold Feld (Public Knowledge). See, HCC notice and notice and HFAC notice. Location: Room 2123, Rayburn Building.

10:30 AM. The Copyright Office (CO) will host a presentation by Peter Jaszi (American University law school) titled "Best Practices in Fair Use". See, notice. Location: Coolidge Auditorium, Jefferson Building, 101 Independence Ave., SE.

12:00 NOON. The Heritage Foundation (HF) will host a discussion of the book [Amazon] titled "A Nation Forsaken - EMP: The Escalating Threat of an American Catastrophe". The speaker will be Michael Maloof, the author. Webcast by HF. Free. Open to the public. See, notice. Location: HF, 214 Massachusetts Ave., NE.

12:00 NOON - 1:30 PM. The American Bar Association (ABA) will host a webcast and teleconferenced panel discussion titled "Single Claim Restriction Requirements: The Interplay Between 35 USC Section 112 and 35 USC Section 121". The speakers will be Thomas Irving (Finnegan Henderson), Orlando Lopez (Burns & Levinson), Daniel Sullivan (USPTO), Robert Titus (Eli Lilly), and Keisha Rodic (Drinker Biddle & Reath). Prices vary. CLE credits. See, notice.

12:30 PM. The House Oversight and Government Reform Committee (HOGRC) will hold a business meeting. See, notice. Location: Room 2154, Rayburn Building.

12:45 - 2:00 PM. The American Enterprise Institute (AEI) will host a lunch. The speaker will be Rep. Eric Cantor (R-VA), the House Majority Leader. Free. Open to the public. Webcast by AEI. See, notice and registration page. Location: AEI, 12th floor, 1150 17th St., NW.

The House will meet at 9:00 AM for legislative business. See, Rep. Cantor's schedule.

9:30 AM. The House Science Committee (HSC) will hold a hearing titled "American Competitiveness: The Role of Research and Development". The witnesses will be Richard Templeton (P/CEO of Texas Instruments), Shirley Ann Jackson (President of Rensselaer Polytechnic Institute), and Charles Vest (President of the National Academy of Engineering). The HSC will webcast this hearing. See, notice. Location: Room 2318, Rayburn Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Boston Scientific v. Cordis, App. Ct. No. 2012-1316. Location: Courtroom 402.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in SpendingMoney v. American Express, App. Ct. No. 2012-1481, an appeal from the U.S. District Court (DConn) in a patent infringement case. Location: Courtroom 402.

11:00 AM - 5:00 PM. Day one of a two day meeting of the National Institute of Standards and Technology's (NIST) Visiting Committee on Advanced Technology (VCAT). See, notice in the Federal Register, Vol. 78, No. 2, January 3, 2013, at Page 292. Location: NIST, Portrait Room, Administration Building, 100 Bureau Drive, Gaithersburg, MD.

12:30 - 1:45 PM. The American Bar Association (ABA) will host a webcast panel discussion titled "O'Brien v. Leegin: Perspectives on State-Law Resale Price Maintenance Actions". The speakers will be Schonette Walker (Maryland Office of the Attorney General), James Armstrong (Foulston Siefkin), John Asker (NYU business school), Benjamin Labow (California Department of Justice), and Will Wohlford (Morris Laing). Free. No CLE credits. See, notice. See also, story titled "SCUS Holds That All Vertical Price Restraints Are Subject to Rule of Reason" in TLJ Daily E-Mail Alert No. 1,603, June 28, 2007.

6:30 PM. The Washington Press Club Foundation will host an event titled "69th Annual Congressional Dinner". The reception begins at 6:30 PM. The dinner and program begin at 8:00 PM. Location: Grand Ballroom, Mandarin Oriental, 1330 Maryland Ave., SW.

Rep. Cantor's schedule states that no votes are expected in the House.

8:30 - 11:15 AM. Day two of a two day meeting of the National Institute of Standards and Technology's (NIST) Visiting Committee on Advanced Technology (VCAT). See, notice in the Federal Register, Vol. 78, No. 2, January 3, 2013, at Page 292. Location: NIST, Portrait Room, Administration Building, 100 Bureau Drive, Gaithersburg, MD.

8:30 AM - 5:00 PM. The American Council for Technology Industry Advisory Council (ACT-IAC) will host an event titled "Executive Management Series on Mobility". Prices vary. See, notice. Location: American Institute of Architects, 1735 New York Ave., NW.

8:45 AM - 5:00 PM. The Federal Communications Commission's (FCC) Federal-State Joint Conference on Advanced Services will host an event titled "Broadband Summit". See, notice. Webcast. Free. Open to the public. Location: FCC, Commission Meeting Room, TW-C305, 445 12th St., SW.

9:00 AM - 4:15 PM. The U.S. China Economic and Security Review Commission will hold an event titled "China’s New Leadership and Implications for the United States". Free. Open to the public. See, notice. Location: Room 2118, Rayburn Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda again includes consideration of three appeals court nominees: Richard Taranto (USCA/FedCir), Robert Bacharach (USCA/10thCir), and William Kayatta (USCA/1stCir). See, notice. See also, story titled "Richard Taranto and the Federal Circuit" in TLJ Daily E-Mail Alert No. 2,497. Webcast. Location: Room 226, Dirksen Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in FlashPoint Technology v. USITC, App. Ct. No. 2012-1149, and appeal from the U.S. International Trade Commission (USITC) in a Section 337 proceeding regarding HTC and electronic imaging devices. Location: Courtroom 402.

10:00 AM. The U.S. Court of Appeals (FedCir) will consider on the briefs Martin Feiffin v. Microsoft, App. Ct. No. 2012-1357. Location: Courtroom 201.

6:00 - 8:00 PM. The Federal Communications Bar Association (FCBA) will host an event titled "Seminar on Enforcement Bureau Nuts and Bolts". The deadline for reservations and cancellations is 12:00 NOON on February 6. Prices vary. CLE credits. See, notice. Location: Drinker Biddle & Reath, 1501 K St., NW.

Rep. Cantor's schedule states that no votes are expected in the House.

9:00 AM - 2:00 PM. The Heritage Foundation (HF) and Taiwan Benevolent Association of America (TBAA) will host an event titled "Shoring Up the US Taiwan Partnership". The speakers will be Sen. John Cornyn (R-TX), Walter Lohman (HF), Taidi Fang (TBAA President), Joanna Lei (former member of the Legislative Yuan), Rupert Chambers (U.S.-Taiwan Business Council President), Claude Barfield (American Enterprise Institute), Matthew Goodman (Center for Strategic and International Studies), Derek Scissors (HF), Randy Schriver (Project 2049), Dean Cheng (HF), Stephen Yates (DC International Advisory), and Vincent Wang (University of Richmond). Webcast by HF. Free. Open to the public. Lunch will be served. See, notice. Location: HF, 214 Massachusetts Ave., NE.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument en banc in Robert Bosch v. Pylon Manufacturing, App. Ct. No. 2011-1363, an appeal from the U.S. District Court (DDel) in patent infringement case involving windshield wipers. The August 7, 2012 order of the Federal Circuit which sua sponte ordered rehearing en banc states that the issue are (1) "Does 28 U.S.C. § 1292(c)(2) confer jurisdiction on this Court to entertain appeals from patent infringement liability determinations when a trial on damages has not yet occurred?", and (2) "Does 28 U.S.C. § 1292(c)(2) confer jurisdiction on this Court to entertain appeals from patent infringement liability determinations when willfulness issues are outstanding and remain undecided." See also, October 13, 2011 opinion of the three judge panel of the Federal Circuit, amicus curiae brief of the IPO, and amicus curiae brief of the AIPLA. Location: Courtroom 201.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument en banc in CLS Bank v. Alice Corporation, App. Ct. No. 2011-1301, an appeal from the U.S. District Court (DC) in a software patent infringement case. At issue is patent eligibility under 35 U.S.C. § 101. The Federal Circuit's October 9, 2012 order granting rehearing en banc states that the two issues are (1) "What test should the court adopt to determine whether a computer-implemented invention is a patent ineligible "abstract idea"; and when, if ever, does the presence of a computer in a claim lend patent eligibility to an otherwise patent-ineligible idea?", and (2) "In assessing patent eligibility under 35 U.S.C. § 101 of a computer-implemented invention, should it matter whether the invention is claimed as a method, system, or storage medium; and should such claims at times be considered equivalent for § 101 purposes?". See also, July 9, 2012 opinion of the three judge panel, amicus curiae brief of the CCIA, amicus curiae brief of the BSA, and amicus curiae brief of Twitter, LinkedIn, Travelocity, and others. Location: Courtroom 201.

Deadline for all parties, except foreign governments to submit comments, and requests to testify at the February 20, 2013 hearing, of the Office of the U.S. Trade Representative (OUSTR) to assist it in making its Special 301 identifications of countries that deny adequate and effective protection of intellectual property rights (IPR) or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. See, story titled "OUSTR Seeks Special 301 Comments on Countries that Deny Adequate IPR Protection" in TLJ Daily E-Mail Alert No. 2,500, December 31, 2012. See also, notice in the Federal Register, December 31, 2012, Vol. 77, No. 250, at Pages 77178-77180.

2:30 - 3:30 PM. The Center for Strategic and International Studies (CSIS) will host an event titled "The Future of the WTO". The speakers will be Anabel González (Costa Rica Minister of Foreign Trade), John Murphy (U.S. Chamber of Commerce), Linda Dempsey (National Association of Manufacturers), and Scott Miller (CSIS). Free. Open to the public. See, notice. Location: CSIS, Room B1, 1800 K. St., NW.

6:00 - 8:15 PM. The DC Bar Association will host a program titled "Export Controls and Economic Sanctions 2013: Recent Developments and Current Issues". The speakers will be Carol Kalinoski and Thomas Scott (Ladner & Associates). The price to attend ranges from $89 to $129. CLE credits. See, notice. For more information, call 202-626-3488. The DC Bar has a history of barring reporters from its events. Location: DC Bar Conference Center, 1101 K St., NW.