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Wednesday, April 24, 2013, Alert No. 2,554.
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Senate Adjourns Until May 6 Without Passing Internet Sales Tax Bill

4/25. Sen. Harry Reid (D-NV) announced in a nearly empty Senate chamber late on Thursday, April 25 that the Senate will adjourn until Monday, May 6, without passing S 743 [LOC | WW], a bill that would authorize states to compel out of state retailers to collect sales taxes on internet and other remote sales.

This is a setback for Sen. Reid, who had attempted to force this bill through the Senate, on short notice, and without review and mark up by the committee with jurisdiction, the Senate Finance Committee (SFC).

This delay gives opposition groups more time to put into play a grass roots campaign to defeat the bill.

Sen. Harry ReidSen. Reid (at left) said that the Senate will pass S 743 when it returns in May.

Opponents of the bill have been waging a filibuster. Sen. Reid prevailed on the first cloture vote (which requires 60 votes for passage) on Monday, by a vote of 74-20. See, Roll Call No. 107, and story titled "Senate Invokes Cloture on Internet Sales Tax Bill" in TLJ Daily E-Mail Alert No. 2,552, April 22, 2013.

Sen. Jeanne SheehanSen. Max Baucus (D-MT), the Chairman of the SFC, and Sen. Ron Wyden (D-OR), a senior member of the SFC, are leading opponents of the bill. Both also represent states that have no state sales tax.

Sen. Baucus also announced on Monday, April 22, that he will not run for re-election in 2014, thereby diminishing the Democrats' chances of maintaining their majority in the Senate. However, he did not associate his decision not to run with Sen. Reid's decision to snub his committee.

See also, Sen. Baucus's April 22 web page titled "Baucus Throws Down The Gauntlet In Fight Against Online Sales Tax".

Sen. Reid taunted the filibustering Senators on Wednesday, April 24. "We have a small number of Senators who are holding this up, stalling. This has 50 Democratic votes and at least 25 Republican votes."

These Senators "are playing procedural games", but, Sen. Reid said, "There is no chance they can prevail. We have three States basically holding up this legislation."

"We are going to finish this legislation this week." And, said Sen. Reid, "If we have to be here Friday and Saturday, I am telling everybody we are going to finish this bill."

Later in the day, the Senate voted on a motion to proceed to S 743. It passed by a vote of 74-23. See, Roll Call No. 110. Democrats from three states voted no -- Sen. Baucus, Sen. Jon Tester (D-MT), Sen. Wyden, Sen. Jeff Merkley (D-OR), and Sen. Jeanne Shaheen (D-NH) -- along with 18 Republicans.

On Thursday, at 5:30 PM the Senate voted on a second motion to invoke cloture. It narrowly passed by a vote of 63-30. See, Roll Call No. 111. Sen. Baucus, Sen. Tester, Sen. Wyden, Sen. Merkley, and Sen. Sheehan voted no, along with 25 Republicans.

Over the course of three votes, opposition grew from 20 to 23 to 30 votes.

Also, Sen. John Cornyn (R-TX) and Sen. Ted Cruz (R-TX) missed the April 25 vote, due to the opening ceremony for the George W. Bush Presidential Library and Museum at Southern Methodist University in Dallas, Texas on April 25. Both voted no in the April 22 and 24 votes.

Sen. Cruz stated in a release that "Had I been present for the vote, I would have emphatically voted `no.´"

"Congress should not pass a massive new Internet sales tax", said Sen. Cruz. "The Democratic leadership should not be doing the bidding of major corporate lobbyists, at the expense of mom-and-pop retailers across America. Forcing small Internet retailers to comply with the taxing authority of over 9600 jurisdictions nationwide would kill jobs and stifle economic growth. There's no reason for the Senate to pass this flawed bill -- skipping the committee process and rushing the bill forward to stifle debate."

"In Montana, our budget has a surplus because we've handled our money wisely," said Sen. Tester in a release. "We don't have a sales tax and have twice voted against having one. This bill would impose new tax burdens on small businesses and create more bureaucracy and more accountants. It's bad policy that will fundamentally alter the rights of states."

Sen. Sheehan stated that "this is a bill that fundamentally violates states' sovereignty". See, video. She wants an amendment that would allow states to opt out.

Many tech groups oppose this bill. See for example, TechAmerica release, Information Technology Industry Council release, NetChoice video, and TechNet release.

See also, National Taxpayers Union (NTU) release, and Competitive Enterprise Institute (CEI) article titled "The Internet Sales Tax Reveals Its Foolish Head Yet Again".

EC Seeks Public Comment on Google's Proposed Antitrust Commitments

4/25. The European Commission (EC) published a set of commitments [61 pages in PDF] proposed by Google to avoid EC action under its antitrust laws, and the EC's request for public comments on those proposed commitments.

The deadline to submit comments is "one month from publication in the Official Journal of the European Union".

The EC's request states that "The Commission's preliminary view is that Google is dominant in the European Economic Area (EEA) both in web search and search advertising. For instance, Google has been holding market shares in web search well above 90% in most European countries for several years now, a level which is higher than in many other parts of the world. There are also significant barriers to entry and network effects in both markets."

It also states that "The Commission has also reached the preliminary conclusion that in four areas Google may be abusing its dominant position in the EEA ... Such abuses would be in breach of Article 102 of the Treaty on the Functioning of the European Union (TFEU)."

The EC listed four competition concerns. "The first competition concern relates to the way Google displays links to its own specialised search services in its web search results."

"The second competition concern relates to the way Google uses without consent content from competing specialised search services in its own offerings.

"The third competition concern relates to exclusivity requirements in Google's agreements with publishers (i.e. any third party web site such as newspapers) with regard to Google online search advertisements displayed on those publishers' web sites. The Commission is concerned that these requirements oblige publishers to obtain all or most of their online search advertisements from Google."

"The fourth competition concern relates to Google contractually restricting the possibility to transfer online search advertising campaigns away from Google's AdWords and to simultaneously manage such campaigns on competing online search advertising platforms."

The EC's request adds that the EC is also "thoroughly examining all other allegations brought to its attention by different market players with a view to deciding whether or not a further investigation of those issues is warranted. Google's Android related business practices are part of those issues."

The U.S. Federal Trade Commission (FTC) has already examined Google, and declined to take significant antitrust action. See, story titled "FTC Concludes Its Investigation of Google" in TLJ Daily E-Mail Alert No. 2,504, January 7, 2013.

The EC stated that "The factual and legal environments are different in the US and Europe. In particular, Bing and Yahoo represent a substantial alternative to Google in web search in the USA", but not in Europe.

Fair Search (FS) stated in a release that "Google's proposed commitments appear to fall short of ending the preferential treatment at the heart of the Commission’s case based on formal complaints from 17 companies. Google’s own screen shots in its proposal (see p. 30) shows it seeks approval to continue preferential treatment for its own products." (Parentheses in original.)

FS is a group that represents Expedia, Microsoft, Nokia, Oracle, TripAdvisor and other mostly U.S. companies in seeking to induce antitrust regulators around the world to regulate Google's business practices.

See also, story titled "Fair Search Files Complaint with EC About Google Mobile Practices" in TLJ Daily E-Mail Alert No. 2,548, April 9, 2013.

People and Appointments

4/24. The Senate confirmed Jane Kelly to be a Judge of the U.S. Court of Appeals (8thCir) by a vote of 96-0. See, Roll Call No. 108.

4/24. The Senate confirmed Sylvia Burwell to be Director of the Office of Management and Budget by a vote of 96-0. See, Roll Call No. 109 and statement by President Obama.

4/24. Gary Shapiro, head of the Consumer Electronics Association (CEA), sent a letter to President Obama regarding selection of the next Chairman of the Federal Communications Commission (FCC), to replace Julius Genachowski. Responding to a letter "from groups purporting to represent the ``public interest´´", he wrote that "having real world business experience is a plus for a policy job affecting businesses". He also urged the selection of someone who holds the "view that freeing up spectrum is important for future innovation and for the millions of tablets, smartphones and other connected devices to come to work as consumers expect".

4/23. Maryam Cope and Miguel Martínez will join the Information Technology Industry Council (ITIC). Cope previously worked for former Sen. Kay Hutchison (R-TX) and the Senate Commerce Committee (SCC). Martinez previously worked for Rep. John Lewis (D-GA), a member of the House Ways and Means Committee (HWMC). See, ITIC release.

In This Issue
This issue contains the following items:
 • Senate Adjourns Until May 6 Without Passing Internet Sales Tax Bill
 • EC Seeks Public Comment on Google's Proposed Antitrust Commitments
 • People and Appointments
Washington Tech Calendar
New items are highlighted in red.
Friday, April 26

The House will meet at 9:00 AM for legislative business. The House will resume consideration of HR 527 [LOC | WW], the "Responsible Helium Administration and Stewardship Act". See, Rep. Cantor's schedule.

The Senate will meet at 11:30 AM in pro forma session. It will return from a one week recess on May 6.

Supreme Court conference day. See, Supreme Court calendar.

8:30 - 11:00 AM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "Bandwidth for the Buck: The State of Broadband Access and Competition in the US". The speakers will be Robert Atkinson (ITIF), Robert Atkinson (Columbia Institute for Tele-Information), Jeffrey Eisenach (Navigant), and Jodie Griffin (Public Knowledge). See, notice. Location: ITIF/ITIC, Suite 610A, 1101 K St., NW.

9:00 AM - 4:00 PM. The Federal Communications Commission's (FCC) Consumer Advisory Committee will meet. See, notice in the Federal Register, Vol. 78, No. 67, April 8, 2013, at Pages 20918-20919. Location: FCC, Commission Meeting Room, 445 12th St., SW.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast and teleconferenced panel discussion titled "IP and the Comic Book Superhero". The speakers will be James Daily (Stanford University Hoover Project on Commercializing Innovation), Brad Desnoyer (DC Comics), Janet Fries (Drinker Biddle & Reath), Martha Voelz (S. H. Jacobs & Associates), and David Postolski (Day Pitney). Prices vary. CLE credits. See, notice.

Monday, April 29

The House will not meet the week of April 29 through May 3. See, House calendar for the 113th Congress, 1st Session.

2:00 - 4:15 PM. The Brookings Institution (BI) and Center for Strategic and International Studies (CSIS) will host a pair of panel discussions titled "Taiwan's Response to an Evolving Security Environment". The speakers will be Richard Bush (BI), Bonnie Glaser (CSIS), Andrew Yang (Taiwan's Vice Minister of National Defense for Policy), Chia-Sheng Chen (Taiwan Ministry of National Defense), and Phillip Saunders (National Defense University). See, CSIS notice and BI registration page. There will be no live webcast. The BI will publish an archived audio recording later in the day, and a transcript within a couple of days. Location: BI, 1775 Massachusetts Ave., NW.

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host an event titled "FirstNet: Views from the Inside and Outside". Prices vary. CLE credits. Registrations and cancellations are due by 12:00 NOON on Friday, April 26. See, notice. Location: Squire Sanders, 1200 19th St., NW.

EXTENDED TO JUNE 21. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding elevating the allocation status of Earth Stations Aboard Aircraft (ESAA) in the 14.0-14.5 GHz band from secondary to primary and whether giving ESAA licensees primary status in the 14.0-14.5 GHz band would require a change to the technical rules. The FCC adopted this NPRM on December 20, 2012, and released it on December 28, 2012. It is FCC 12-161 in IB Docket No. 12-376. See also, original notice in the Federal Register, Vol. 78, No. 46, March 8, 2013, at Pages 14952-14957. See, second notice in the FR, Vol. 78, No. 61, March 29, 2013, at Page 19172.

Deadline to submit comments to the Department of Commerce's (DOC) National Institute of Standards and Technology (NIST) regarding the cyber security regulatory regime initiated by Executive Order of February 13, 2013. See, notice in the Federal Register Vol. 78, No. 60, March 28, 2013, at Pages 18954-18955. See also, stories titled "Obama Signs Cyber Security Order and Policy Directive" in TLJ Daily E-Mail Alert No. 2,525, February 19, 2013, and "NIST Issues Cyber Security NOI" in TLJ Daily E-Mail Alert No. 2,542, March 27, 2013.

Deadlines to submit nominations to the Department of Commerce (DOC) for membership on its Federal Economic Statistics Advisory Committee. See, notice in the Federal Register, Vol. 78, No. 61, March 29, 2013, at Pages 19191-19192.

Tuesday, April 30

TIME? The Department of State's (DOS) International Telecommunication Advisory Committee's (ITAC) ITAC-D ad hoc will meet to discuss preparation for the ITU World Telecommunication Development Conference (WTDC 2014). See, notice in the Federal Register, Vol. 78, No. 57, March 25, 2013, at Pages 17992-17993. Location: Fourth floor West Tower, 1300 I St., NW.

1:00 - 5:00 PM. The Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) will hold another in its series of meetings regarding mobile application transparency. See, notice in the Federal Register, Vol. 78, No. 62, April 1, 2013, at Pages 19461-19462. Location: American Institute of Architects, 1735 New York Ave., NW.

6:00 PM. Deadline to submit applications to participate in Federal Communications Commission (FCC) Auction 95. This auction of licenses in the lower and upper paging bands  is scheduled to begin on July 16, 2013. This is AU Docket No. 13-12. See, notice in the Federal Register, Vol. 78, No. 80, April 25, 2013, Pages 24404-24420.

Deadline to submit reply comments to the Federal Communications Commission's (FCC) Media Bureau (MB) in response to its Public Notice, DA 13-281 in MB Docket No. 13-50, released on February 26, 2013, regarding the August 31, 2012 letter from the Coalition for Broadcast Investment regarding FCC restrictions on foreign ownership and voting interests. See also, notice in the Federal Register Vol. 78, No. 55, March 21, 2013, at Pages 17395-17403.

Extended deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) regarding whether there should be a small claims process for patent enforcement. See, original notice in the Federal Register (FR), Vol. 77, No. 243, December 18, 2012, at Pages 74830-74831, and extension notice in the FR, Vol. 78, No. 44, March 6, 2013, at Pages 14515-14516. See also, story titled "USPTO Seeks Comments on Creation of Patent Small Claims Process" in TLJ Daily E-Mail Alert No. 2,494, December 19, 2012.

Wednesday, May 1

9:30 AM. The Securities and Exchange Commission's (SEC) Advisory Committee on Small and Emerging Companies will meet. See, notice. Location: SEC, Multi-Purpose Room LL-006, 100 F St., NE.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Engineering and Technical Committee will host a brown bag lunch titled "Wireline Broadband Technology Advances -- Getting a Gigabit to the Home". Location: T-Mobile, North Building, Suite 800, 601 Pennsylvania Ave., NW.

Thursday, May 2

1:00 PM. The US Telecom will host a webcast seminar titled "IP and Optical Evolution". The speaker will be Greg Nehib (Cisco). Free. Open to the public. See, notice.

6:00 - 8:00 PM. The New America Foundation (NAF) will host an event at which Eric Schmidt and Jared Cohen will discuss their book titled "The New Digital Age: Reshaping the Future of People, Nations and Business". See, notice. Location: McDermott Building, 500 North Capitol St., NW.

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host an event titled "An Update on the Open Internet Order and Its Impact". Prices vary. CLE credits. Registrations and cancellations due by 12:00 NOON on Wednesday, May 1. See, notice. Location: Dow Lohnes, 1200 New Hampshire Ave., NW.

Friday, May 3

8:30 AM. The Department of Labor's (DOL) Bureau of Labor Statistics (BLS) is scheduled to release its April 2013 unemployment data.

The Federal Communications Commission (FCC) will host an event titled "workshop" in its incentive auctions rulemaking proceeding, GN Docket No. 12-268. See, FCC Public Notice (DA 13-614). See also, FCC's Notice of Proposed Rulemaking (NPRM), and story titled "FCC Announces Workshop on Incentive Auction's 600 MHz Band Plan" in TLJ Daily E-Mail Alert No. 2,546, April 4, 2013. Location: FCC, Commission Meeting Room, TW-C305, 445 12th St., SW.

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