TLJ News from February 21-25, 2011

Senate Commerce Committee Names Subcommittee Members

2/25. The Senate Commerce Committee (SCC) announced members of its subcommittees. Every member of the full Committee has also been named to its Subcommittee on Communications, Technology and the Internet (SCTI).

The SCTI is responsible for communications, certain internet related matters, and oversight of the Federal Communications Commission (FCC) and National Telecommunications and Information Administration (NTIA).

The Democratic members of the SCTI are Sen. John Kerry (D-MA) (SCTI Chairman), Sen. Daniel Inouye (D-HI), Sen. Barbara Boxer (D-CA), Sen. Bill Nelson (D-HI), Sen. Maria Cantwell (D-WA), Sen. Frank Lautenberg (D-NJ), Sen. Mark Pryor (D-AR), Sen. Claire McCaskill (D-MO), Sen. Amy Klobuchar (D-MO), Sen. Tom Udall (D-NM), Sen. Mark Warner (D-VA), Sen. Mark Begich (D-AK), Sen. John Rockefeller (D-WV) (SCC Chairman).

The Republican members of the SCTI are Sen. John Ensign (R-NV) (SCTI ranking Republican), Sen. Olympia Snowe (R-ME), Sen. Jim DeMint (R-SC), Sen. John Thune (R-SD), Sen. Roger Wicker (R-MS), Sen. Johnny Isakson (R-GA), Sen. Roy Blunt (R-MO), Sen. John Boozman (R-AR), Sen. Patrick Toomey (R-PA), Sen. Marco Rubio (R-FL), Sen. Kelly Ayotte (R-NH), and Sen. Kay Hutchison (R-TX) (SCC ranking Republican).

The Democratic members of the Subcommittee on Consumer Protection, Product Safety and Insurance are Pryor (Chairman), Kerry, Boxer, McCaskill, Klobuchar, Udall, and Rockefeller. The Republican members are Wicker (ranking Republican), Ensign, Thune, Boozman, Toomey, and Hutchison.

This subcommittee handles consumer protection, including in online commerce, consumer privacy, and oversight of the consumer protection functions of the Federal Trade Commission (FTC).

The Democratic members of the Subcommittee on Competitiveness, Innovation, and Export Promotion are Klobuchar (Chairman), Kerry, Cantwell, Pryor, Udall, Warner, Begich and Rockefeller. The Republican members are Blunt (ranking Republican), Ensign, DeMint, Thune, Boozman, Ayotte, and Hutchison.

This subcommittee has little authority or purpose. The SCC web site states that this subcommittee "has general oversight jurisdiction over the U.S. Department of Commerce, whose mission is to foster, serve, and promote the nation’s foreign and domestic commerce, economic development, technological advancement, and environmental stewardship." However, oversight of key Department of Commerce (DOC) components rests with other committees. For example, the Senate Judiciary Committee (SJC) oversees the U.S. Patent and Trademark Office (USPTO).

The SCC web site also states that this Subcommittee "pays particular attention to strengthening the competitiveness of U.S. industry, promoting trade and investment, and ensuring fair trade and compliance with trade laws and agreements. The Subcommittee also focuses on innovation and manufacturing to help businesses remain globally competitive."

Obama Signs Three Month Extension of Surveillance Provisions

2/25. President Obama signed HR  514 [LOC | WW], the "FISA Sunsets Extension Act of 2011". See, White House news office release. This action merely briefly postpones consideration of this topic. The new sunset date is May 27, 2011.

This bill, as passed by the Senate on February 15, 2011, and the House on February 17, 2011, extends statutory sunsets for lone terrorist, business records, and roving wiretap authority. The three provision were set to sunset on February 28, 2011. The bill as introduced would have extended the sunsets to December 31, 2011.

For a more detailed summary of these surveillance provisions, and the history of extension of their sunset dates, see story titled "House and Senate Extend Expiring Surveillance Provisions" in TLJ Daily E-Mail Alert No. 2,054, March 3, 2010. For more on the legislative history of HR 514, see story titled "House to Continue Consideration of Bill to Extend Sunsets on Surveillance Provisions" in TLJ Daily E-Mail Alert No. 2,197, February 16, 2011.

Rep. Lamar Smith (R-TX), the Chairman of the House Judiciary Committee (HJC), stated in the House on February 17 that "the Senate amendment to H.R. 514 extends the three expiring provisions of the Patriot Act for only 90 days. I am disappointed that the Senate refused to agree to the 10-month extension approved by the House earlier this week. Repeated short-term extensions of these authorities create uncertainty for our intelligence agencies. They don't know if the tools they rely on to keep America safe today will be available to them tomorrow."

Rep. Barney Frank (D-MA) stated in the House that "Of course we are supportive of continuing our ability to defend ourselves but not without some refinement, not without some look and say, yes, there are ways we could do this that are more respectful of the liberties of the average American but would not endanger in any way our national security. For the third time, we are being denied a chance to do this".

Rep. Bobby Scott (D-VA), a senior member of the HJC, lamented that there was no hearing or markup in the HJC, and added that the three sunsetted provisions are "deeply troubling". He also addressed the three provisions in some detail.

First, he said that "Section 215 authorizes the government to obtain ``any tangible thing´´ so long as the government provided a ``statement of facts showing that there are reasonable grounds to believe that the tangible things are relevant to a foreign intelligence, international terrorism, or espionage investigation.´´ That would include business records, library records, tax records, educational records, medical records, or anything else. Before the enactment of section 215, only specific types of records were subject to FISA orders, and the government had to show ``specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power.´´"

Rep. Bobby ScottRep. Scott (at right) continued that "This dragnet approach allows the government to review personal records even if there is no reason to believe that the individual involved had anything to do with terrorism. This poses a threat to individual rights in the most sensitive areas of our lives with little restraint on government. Congress should either ensure that the things collected with this power have a meaningful connection to suspected terrorism activity or allow the provision to expire."

Next, he said that "Section 206 provides for roving wiretaps which permit the government to obtain intelligence surveillance orders that identify neither the person nor the facility to be tapped. Without the necessity to specify the person and the facility to be tapped, you have a situation where the tap could be on a particular phone. And without specifically designating the person to be listened into, that means anybody using that pay phone, for example, can be listened into, or a roving wiretap on a person could result in any phone that that person might use being tapped, even if others use that phone, too."

Finally, he addressed lone wolf surveillance authority. He said that it "permits secret intelligence of non-U.S. persons who are known to be not affiliated with any foreign government or organization. It provides the government with the ability to use secret courts or other investigatory tools that are acceptable in a domestic criminal investigation as long as we are dealing with a foreign government or an entity. According to government testimony, the lone wolf provision has never been used. Given the risk of this provision being used to circumvent existing protections against government intrusion, the government should explain why it should remain on the books. Surveillance of an individual who is not working with a foreign government or foreign organization is not what we usually understand as foreign intelligence."

The House passed HR 514 on February 17 by a vote of 279-143. See, Roll Call No. 66. Republicans voted 211-26. Democrats voted 68-117.

NTIA Seeks Comments on IANA Functions

2/25. The Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) released a Notice of Inquiry (NOI) regarding Internet Assigned Numbers Authority (IANA) functions.

See, notice in the Federal Register, February 25, 2011, Vol. 76, No. 38, at Pages 10569-10571. The deadline to submit comments is March 31, 2011.

The IANA manages the global coordination of the Domain Name System (DNS) root, internet protocol (IP) addressing, and other IP resources pursuant to a contract with the NTIA that expires on September 30, 2011.

The IANA's functions include coordination of the assignment of technical protocol parameters, administration of responsibilities associated with Internet Domain Name System (DNS) root zone management, and responsibility for allocated and unallocated IPv4 and IPv6 address space and Autonomous System Number (ASN) space, including the delegation of IP address blocks to Regional Internet Registries (RIRs) for routine allocation.

The NTIA seeks comments on numerous topics. The NTIA states that "IANA functions have been viewed historically as a set of interdependent technical functions and accordingly performed together by a single entity."

It asks, "In light of technology changes and market developments, should the IANA functions continue to be treated as interdependent? For example, does the coordination of the assignment of technical protocol parameters need to be done by the same entity that administers certain responsibilities associated with root zone management?"

Second, the NTIA notice states that "The performance of the IANA functions often relies upon the policies and procedures developed by a variety of entities", such as the Internet Engineering Task Force (IETF), RIRs, and country code top level domain (ccTLD) operators.

It asks, "Should the IANA functions contract include references to these entities, the policies they develop and instructions that the contractor follow the policies?"

Third, the NTIA notice asks, "Cognizant of concerns previously raised by some governments and ccTLD operators and the need to ensure the stability of and security of the DNS, are there changes that could be made to how root zone management requests for ccTLDs are processed?"

The NTIA notice asks whether the current metrics and reporting requirements are sufficient, whether process improvements or performance enhancements can be made to the IANA functions contract to better reflect the needs of users of the IANA functions, and whether additional security considerations and/or enhancements should be factored into requirements for the performance of the IANA functions.

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2/25. The U.S. Patent and Trademark Office (USPTO) issued a release regarding a pilot project for the Patent Prosecution Highway (PPH) with the Mexican Institute of Industrial Property (IMPI). The USPTO stated that this "will permit each office to benefit from work previously done by the other office, which reduces the examination workload and improves patent quality. The expedited examination in each office allows applicants to obtain corresponding patents faster and more efficiently in each country. Under the PPH pilot program an Office of Second Filing (OSF) may utilize the search and examination results of a national application filed in the Office of First Filing (OFF) in a corresponding application filed under the Paris Convention in the OSF."

FCC Releases Agenda for March 3 Meeting

2/24. The Federal Communications Commission (FCC) released an agenda [4 pages in PDF] for its event on Thursday, March 3, 2011, titled "open meeting". The agenda includes adoption of a NPRM on retransmission consent, a NPRM on expanding the Lifeline and Linkup universal service subsidy programs to include broadband, two NPRMs on disability access, and three items related to communications on tribal lands.

The FCC will meet at 10:00 AM to adopt the three items regarding tribal lands. The FCC will meet at 2:00 PM to adopt the other items. The meeting will be held in the Commission Meeting Room, and will be web cast.

Disability Access. The agenda includes adoption of two Notice of Proposed Rulemakings (NPRMs) that implement portions of the "Twenty-First Century Communications and Video Accessibility Act of 2010", or CVAA, which the Congress enacted late in the 111th Congress.

One of the purposes of the CVAA is to improve the access of persons with disabilities, including vision and hearing loss, to new communications and information technologies.

See, S 3304 [LOC | WW], previously titled the "Equal Access to 21st Century Communications Act", which contains the substantive language, and S 3828 [LOC | WW], the "Twenty-First Century Communications and Video Accessibility Act of 2010", signed into law on October 8, 2010.

One NPRM begins the process to reinstate and modify the video description rules adopted by the FCC in 2000, and subsequently vacated by the U.S. Court of Appeals. In 2000, the FCC lacked statutory authority. See, S 3304, Title II, Section 202.

The other NPRM will be far reaching and impose burdensome new requirements. It will place within the FCC's regulatory reach numerous innovative businesses and products that were not previously regulated.

This NPRM pertains to implementation of the new Section 716 of the Communications Act. The CVAA, at S 3304, Title I, Section 104, gives the FCC sweeping direction and authority to regulate "user equipment, network equipment, and software" to ensure that it is "accessible to and usable by individuals with disabilities".

This new authority reaches all "advanced communications services", which is broadly defined to include "non-interconnected VOIP". This section also directs the FCC to regulate the services provided by any "provider of advanced communications services". This section also directs the FCC to regulate "network features, functions, or capabilities".

This proceeding is CG Docket No. 10-213, WT Docket No. 96-198, and CG Docket No. 10-145.

Retransmission Consent. The agenda also includes adoption of an NPRM that "seeks comment on changes to rules governing or affecting retransmission consent negotiations between broadcasters and multichannel video programming distributors".

The retransmission consent regulatory regime was established by the Cable Act of 1992, and is further implemented by FCC rules. This is an issue with a high profile for the public and the Congress. However, the FCC has little statutory authority in this area.

47 U.S.C. § 325 provides that "No cable system or other multichannel video programming distributor shall retransmit the signal of a broadcasting station, or any part thereof, except ... with the express authority of the originating station". That is, broadcasters can charge cable companies and other MVPDs for retransmission of their programming. The companies have been negotiating retransmission consent contracts for 18 years.

Unlike in 1992, there are now usually multiple MVPDs in each market. When one MVPD has permission to retransmit a particular program, but another does not, consumers can switch providers. However, there are switching costs. Subscribers of a particular MVPDs can experience unexpected disruption of programming that they want to watch if a new retransmission consent agreement is not reached.

This proceeding is MB Docket No. 10-71.

Universal Service Subsidies. The agenda also includes adoption of a NPRM "to reform and modernize" two universal service tax and subsidy programs, titled "Lifeline" and "Link Up". See also, the FCC's web page that describes these two programs.

The agenda also states that this NPRM proposes to expand these programs to include subsidization of broadband. The FCC's staff report [376 pages in PDF] titled "A National Broadband Plan for Our Future", released in March of 2010, recommended this.

47 U.S.C. § 254, the statutory basis for these programs, applies only to "telecommunications services" and a "telecommunications carrier".

This proceeding is the eternal CC Docket No. 96-45, and WC Docket No. 03-109.

Tribal Lands. The first part of the event will be devoted to statements regarding, and approval of items, pertaining to communications on tribal lands.

First, the FCC is scheduled to adopt an order and FNPRM regarding the provision of radio services by Native Nations in the area of tribal lands. This is MB Docket No. 09-52 and RM-11528.

Second, the FCC is scheduled to adopt a NPRM regarding "recommendations to help close the wireless gap on Tribal Lands".

Third, the FCC is scheduled to adopt a Notice of Inquiry (NOI) that "explores ways to overcome the barriers to deployment of communications services to Native Nations communities".

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2/24. The Library of Congress's (LOC) Copyright Office (CO) again extended the deadline to submit reply comments in response to its Notice of Inquiry (NOI) regarding federal coverage of sound recordings fixed before February 15, 1972. This proceeding is LOC Docket No. 2010-4. See, story titled "Library of Congress Issues NOI on Extending Copyright Act to Pre 1972 Sound Recordings" in TLJ Daily E-Mail Alert No. 2,150, November 8, 2010. See also, notice in the Federal Register, November 3, 2010, Vol. 75, No. 212, at Pages 67777-67781; correction notice in the Federal Register, November 18, 2010, Vol. 75, No. 222, at Pages 70704-70705; extension notice in the Federal Register, December 1, 2010, Vol. 75, No. 230, at Pages 74749-74750; and, further extension notice in the Federal Register, February 24, 2011, Vol. 76, No. 37, at Pages 10405-10406.

2/24. The Federal Communications Commission (FCC) published a notice in the Federal Register that sets comment deadlines for its Further Notice of Proposed Rulemaking (NPRM) [58 pages in PDF] regarding development of a technical interoperability framework for a nationwide public safety broadband network in the 700 MHz band. The FCC adopted this NPRM on January 25, 2011, and released the text on January 26, 2011. It is FCC 11-6 in PS Docket No. 06-229, WT Docket 06-150, and WP Docket 07-100. See, Federal Register, February 24, 2011, Vol. 76, No. 37, at Pages 10295-10299. The deadline to submit initial comments is April 11, 2011. The deadline to submit reply comments is May 10, 2011.

People and Appointments

2/23. President Obama announced his intent to nominate Carl Shapiro to be a member of the Council of Economic Advisors. See, White House news office release. Shapiro is the Deputy Assistant Attorney General for Economics at the Department of Justice's (DOJ) Antitrust Division. See also, November 2008 paper [PDF] by Shapiro and Joseph Farrell titled "Antitrust Evaluation of Horizontal Mergers: An Economic Alternative to Market Definition"; column titled "People and Appointments" in TLJ Daily E-Mail Alert No. 1,931, April 27, 2009; story titled "DOJ's Shapiro Discusses Upcoming Revisions to Horizontal Merger Guidelines" in TLJ Daily E-Mail Alert No. 2,015, November 16, 2009; and story titled "Antitrust Division Urges FCC to Make More Spectrum Available for Wireless Broadband" in TLJ Daily E-Mail Alert No. 2,033, January 6, 2010.

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2/23. The Department of Commerce (DOC) announced the appointment of 22 persons to the President's Export Council Subcommittee on Export Administration (PECSEA). See, DOC release.

FTC Files Complaint Against Text Spammer

2/22. The Federal Trade Commission (FTC) filed a complaint in the U.S. District Court (CDCal) against Phillip Flora alleging violation of the FTC Act and the civil prohibitions of the federal federal CAN-SPAM Act (15 U.S.C. § 7706) in connection with his sending of unauthorized and unsolicited commercial electronic text messages.

The FTC stated in a release that "In one 40-day period, Flora sent more than 5.5 million spam text messages, a ``mind boggling´´ rate of about 85 per minute, every minute of every day", and that "consumers lose money as a result of Flora's spam text messaging because many of them get stuck paying fees to their mobile carriers to receive the unwanted text messages."

The complaint states that the text messages purported to offer mortgage loan modifications and debt relief services, and then requested recipients to visit a web site that then requested information. The complaint further states that Flora sold consumer phone number and debt information to third parties.

The complaint also notes that "Many of the recipients of Defendant Flora's text message spam have wireless service plans that require them to pay a fixed fee for each text message received by their wireless handsets. Accordingly, many such recipients were 25 required to pay a fee for the receipt of Defendant Flora's text message spam."

It also states that "Many recipients of Defendant Flora's text message spam had the telephone numbers assigned to their wireless handsets registered on the National Do Not Call Registry maintained by the FTC, and thus had explicitly indicated that they did not wish to receive unsolicited marketing calls on those handsets".

The complaint seeks injunctive relief, restitution, and disgorgement.

This case is FTC v. Philip A. Flora, U.S. District Court for the Central District of California, D.C. No. SACV11-00299-AG-JEMx.

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2/21. EC Trade Commissioner Karel DeGucht gave a speech in Brussels, Belgium titled "Shoulder to Shoulder: the European View of the Transatlantic Relationship and the State of the WTO". He discussed trade barriers, dual use export controls, Doha round negotiations, the World Trade Organization (WTO), and other trade related topics. He said, regarding Doha, that "Failure to complete the negotiations in 2011 might create lasting damage to the world trading system."

Go to News from February 16-20, 2011.