TLJ News from May 26-31, 2013

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5/31. Federal Communications Commission (FCC) Commissioner Ajit Pai gave a short speech at the Missouri Broadcasters Association convention in which he addressed "importance of AM radio in times of crisis", and the challenges facing AM broadcasters.

FCC Adopts CVAA NPRM on User Interfaces

5/30. The Federal Communications Commission (FCC) adopted and released a Notice of Proposed Rulemaking (NPRM) regarding implementation of Sections 204 and 205 of the Twenty-First Century Communications and Video Accessibility Act, which is also known as the CVAA, which mandate that user interfaces on digital apparatus and navigation devices used to view video programming be accessible to and usable by blind and visually impaired people.

The 111th Congress enacted the CVAA. 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", which President Obama signed into law on October 8, 2010. It is now Public Law No. 111-260.

CVAA Section 204. Section 204 of Title II of S 3304 pertains to "User Interfaces on Digital Apparatus". Paragraph (1) provides that the FCC shall write rules that require, "if achievable ... that digital apparatus designed to receive or play back video programming transmitted in digital format simultaneously with sound, including apparatus designed to receive or display video programming transmitted in digital format using Internet protocol, be designed, developed, and fabricated so that control of appropriate built-in apparatus functions are accessible to and usable by individuals who are blind or visually impaired, except that the Commission may not specify the technical standards, protocols, procedures, and other technical requirements for meeting this requirement".

Paragraph (2) of Section 204 continues that such rules shall provide that "that if on-screen text menus or other visual indicators built in to the digital apparatus are used to access the functions of the apparatus described in paragraph (1), such functions shall be accompanied by audio output that is either integrated or peripheral to the apparatus, so that such menus or indicators are accessible to and usable by individuals who are blind or visually impaired in real-time".

Paragraph (3) provides then provides that the rules shall require "that for such apparatus equipped with the functions described in paragraphs (1) and (2) built in access to those closed captioning and video description features through a mechanism that is reasonably comparable to a button, key, or icon designated by activating the closed captioning or accessibility features".

Finally, it provides that the term "apparatus" does not include "navigation device" as defined at 47 C.F.R. 76.1200.

CVAA Section 205. Section 205 pertains to "Access to Video Programming Guides and Menus Provided on Navigation Devices". It provides that that the FCC shall write rules the require "if achievable ... that the on-screen text menus and guides provided by navigation devices (as such term is defined in section 76.1200 of title 47, Code of Federal Regulations) for the display or selection of multichannel video programming are audibly accessible in real-time upon request by individuals who are blind or visually impaired, except that the Commission may not specify the technical standards, protocols, procedures, and other technical requirements for meeting this requirement" and "for navigation devices with built-in closed captioning capability, that access to that capability through a mechanism is reasonably comparable to a button, key, or icon designated for activating the closed captioning, or accessibility features". (Parentheses in original.)

It adds that "With respect to apparatus features and functions delivered in software, the requirements set forth in this subsection shall apply to the manufacturer of such software. With respect to apparatus features and functions delivered in hardware, the requirements set forth in this subsection shall apply to the manufacturer of such hardware."

Pai Statement. FCC Commissioner Ajit Pai wrote separately regarding what categories of devices are covered by the statute.

He wrote that "it would seem that the plain language of the statute precludes us from narrowing section 205 to cover only navigation devices provided by MVPDs and expanding section 204 to include navigation devices sold at retail along with other digital apparatus. Section 205 of the Act covers “navigation devices (as such term is defined in section 76.1200 of title 47, Code of Federal Regulations).” And section 204 of the Act specifically provides that “the term ‘apparatus’ does not include a navigation device, as such term is defined in section 76.1200 of the Commission’s rules (47 CFR 76.1200).” Given this straightforward language, I have difficulty seeing how any equipment that qualifies as a navigation device under our rules could be exempt from section 205 and covered instead as an apparatus under section 204 of the Act. The text of section 205 and the specific navigation-device carve-out from section 204 appear to apply to all navigation devices, regardless of whether they are supplied by MVPDs or obtained by consumers in another manner." (Parentheses in original. Footnotes omitted.)

This NPRM is FCC 13-77 in MB Docket No. 12-108. Initial comments will be due within 25 days of publication of a notice in the Federal Register (FR). Reply comments will be due within 50 days of such publication. The FCC has not yet published this FR notice.

Obama May Nominate Comey for FBI Director

5/30. Various news publications have stated that President Obama will nominate James Comey to be Director of the Federal Bureau of Investigation (FBI). The fixed term of office is ten years.

Robert Mueller is the outgoing FBI Director. He has served since 2001. The 112th Congress enacted legislation in 2011 that enabled the President to extend his term by just over two years, until September 4, 2013. See, S 1103 [LOC | WW], and story titled "Senate Confirms Mueller for Two More Years" in TLJ Daily E-Mail Alert No. 2,272, July 28, 2011.

During a May 30, 2013 news conference a member of the President's public relations staff was asked, "can you confirm that the President has settled on Comey for his FBI Director? And can you discuss any timeline for making that nomination official?" He answered, "I don't have any personnel announcements to make at this time, and I'm really not in a position to even give you a better sense of the timing. So we'll have to save that for a later day." See, transcript.

James ComeyComey (2003 photo at right) has experience as a federal prosecutor. He was an Assistant U.S. Attorney (AUSA) in the Office of the U.S. Attorney (OUSA) for the Southern District of New York (SDNY) from 1987 through 1993. He also worked in the OUSA for the Eastern District of Virginia from 1996 through 2001.

President Bush appointed Comey USA for the SDNY, but he only served in that capacity until December of 2003. President Bush appointed him Deputy Attorney General (DAG), the number two position in the Department of Justice (DOJ). He served there until August of 2005.

He then went to work as General Counsel of Lockheed Martin, a defense contractor that is involved in, among other things, information technology, communications, and space capabilities.

Then, in 2010 he went to work for Bridgewater Associates, which states in its web site that it "manages approximately $150 billion in global investments for a wide array of institutional clients, including foreign governments and central banks, corporate and public pension funds, university endowments and charitable foundations".

Federal Election Commission (FEC) records reveal that in the 2008 election cycle Comey gave money to the McCain campaign. In the 2012 election cycle, he gave to the Romney campaign. He also gave to the campaign of Rep. Susan Brooks (R-IN), a first term member. Former President Bush appointed her USA for the Southern District of Indiana at about the same time that he appointed Comey USA for the SDNY.

Comey has not written about his work at the DOJ. However, Jack Goldsmith, who is now at Harvard law school, but who was Assistant Attorney General in charge of the DOJ's Office of Legal Counsel (OLC) when Comey was the DAG, has written a book [Amazon] titled "The Terror Presidency: Law and Judgment Inside the Bush Administration". In this book, Goldsmith addresses the secretive program disclosed by the New York Times in December of 2005, which the DOJ then called the "Terrorist Surveillance Program" or "TSP". This program involved extrajudicial electronic intercepts where one party is within the U.S. and the other is believed to be outside the U.S.

Goldsmith wrote that "I am not permitted to say much about how Jim Comey, Patrick Philbin, and I, with the crucial support of former Attorney General John Ashcroft and others, struggled to put the Terrorist Surveillance Program on a proper legal footing." (See, pages 177-182.)

The NYT published a story by James Risen and Eric Lichtblau on December 16, 2005, titled "Bush Lets U.S. Spy on Callers Without Courts". It stated that "President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials." See also, story titled "President Bush Discloses Interception of Communications Without Court Approval" in TLJ Daily E-Mail Alert No. 1,275, December 19, 2005, and story titled "Bush, Gonzales & Hayden Discuss Presidential Intercepts and PATRIOT Act" in TLJ Daily E-Mail Alert No. 1,276, December 20, 2005.

Goldsmith's interpretation of the TSP is that "We were at war with terrorists who were armed with disposable cell phones and encrypted emails buried in a global multibillion- communications- per-day system. It seemed crazy to require the Commander in Chief and his subordinates to get a judge's permission to listen to each communication under a legal regime that was designed before technological revolutions brought us to high-speed fiber-optic networks, the public Internet, email, and ten-dollar cell phones."

His view was that former Vice President Richard Cheney and David Addington (then Cheney's Counsel, and now at the Heritage Foundation) "abhorred FISA's intrusion on presidential power", but rather than attempting to address the problem with the courts or Congress, went "alone, in secret". Meanwhile, according to Goldsmith, it was Goldsmith, Comey, and others at the DOJ who fought to put this surveillance program on legal footing.

Goldsmith also wrote that he worked with Comey in withdrawing an August 2002 DOJ opinion on interrogation. Goldsmith added that Comey "had been my most powerful ally, not only in correcting the flawed interrogation opinions but also in many other significant and difficult matters as well. Comey is a seasoned prosecutor and one of the quickest and shrewdest lawyers I have ever met." (See, pages 159-160.)

As USA/SDNY and then as DAG, Comey handled some of the most significant criminal and terrorist investigations and prosecutions.

But, he also has a capacity for diverting into the ridiculous. For example, he was the USA who oversaw the investigation and charging of celebrity homemaker Martha Stewart. That securities case did much to boost the television ratings of the OUSA/SDNY. However, it did little to increase the integrity of securities markets, and diverted federal resources that could have been devoted to more serious matters.

See also, story titled "Deputy AG Comey Testifies Before House Judiciary Committee on PATRIOT Act" in TLJ Daily E-Mail Alert No. 1,151, June 10, 2005.

People and Appointments

5/29. The Department of Commerce's (DOC) International Trade Administration (ITA) published a notice in the Federal Register (FR) that solicits applications for membership on the U.S.-Brazil CEO Forum. The deadline to submit applications is June 28, 2013. The term of the current representatives to the U.S. Section will expire August 12, 2013. See, FR, Vol. 78, No. 103, May 29, 2013, at Page 32239.

Indictment Returned and Domains Seized in Liberty Reserve Digital Currency Matter

5/28. The U.S. District Court (SDNY) unsealed an indictment that charges Liberty Reserve S.A. and several individuals with conspiracy (18 U.S.C. § 371) to commit money laundering (18 U.S.C. § 1956) and operating an unlicensed money transmitting business (18 U.S.C. §§ 1960 and 1962) in connection with the operation of a digital currency, a payment processor and money transfer system.

The indictment states that the defendants "intentionally created, structured, and operated LIBERTY RESERVE as a criminal business venture, one designed to help criminals conduct illegal transactions and launder the proceeds of their crimes. The defendants deliberately attracted and maintained a customer base of criminals by making financial activity on LIBERTY RESERVE anonymous and untraceable."

See, full story.

DC Circuit Overturns FCC's Tennis Channel Order

5/28. The U.S. Court of Appeals (DCCir) issued its opinion [51 pages in PDF] in Comcast v. FCC, granting the petition for review of the Federal Communications Commission's (FCC) July 2012 order, in which the FCC found that Comcast discriminated against the Tennis Channel (TC) in tier placement.

All three members of the three judge panel wrote opinions. The line of reasoning in which all three judges joined was the absence of evidence in support of the Tennis Channel's (TC) claim that Comcast discriminated against an unaffiliated vendor in violation of the statute and regulations.

One judge would have also granted the petition on the grounds that the TC filed its complaint with the FCC in an untimely manner. One judge would have also granted the petition as a consequence of his applying principles of antitrust law to the statute.

Comcast is a multichannel video programming distributor (MVPD). It offers channels in tiers. The TC wanted Comcast to place it on a tier with wider distribution. Comcast did not. So, in 2010 the TC filed a complaint with the FCC.

A divided FCC released a Memorandum Opinion and Order (MOO) on July 24, 2012 that affirmed the conclusion of an administrative law judge (ALJ) that Comcast violated the FCC's program carriage rules, and must provide equal carriage to the TC. The FCC concluded that Comcast discriminated against an unaffiliated video programming vendor (that is, the TC), and in favor of the affiliated Golf Channel and Versus, in violation of Section 616 of the Communications Act, and the FCC's rules thereunder.

The FCC's order asserted broad authority to make decisions for cable companies, and other MVPDs, regarding what programming to distribute, and at what tier to distribute them. See, story titled "FCC Asserts Broad MVPD Program Carriage Authority" and in TLJ Daily E-Mail Alert No. 2,412, July 26, 2012.

See, full story.

People and Appointments

5/28. President Obama has not yet announced his intent to nominate Jason Furman to be Chairman of the Executive Office of the President's (EOP) Council of Economic Advisers (CEA), The current Chairman, Alan Krueger, will resume his previous employment at Princeton University. See, White House news office release. Furman is currently the Principal Deputy Director of the EOP's National Economic Council (NEC)

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5/28. The Copyright Royalty Judges published a notice in the Federal Register (FR) that announces that they received two notices of intent to audit the 2010, 2011, and 2012 statements of account submitted by Saga Communications, Inc. and Cumulus Media, Inc. concerning the royalty payments made by each pursuant to two statutory licenses. See, FR, Vol. 78, No. 102, May 28, 2013, at Page 31977.

5/28. A divided Copyright Royalty Judges panel published a notice in the Federal Register (FR) that announces, describes, and contains a Technical Amendment to the Final Determination regarding rates and terms for the digital transmission of sound recordings and the reproduction of ephemeral recordings by preexisting subscription services and preexisting satellite digital audio radio services for the period
beginning January 1, 2013, and ending on December 31, 2017. This proceeding is Docket No. 2011-1 CRB PSS/Satellite II. See, FR, Vol. 78, No. 102, May 28, 2013, at Pages 31842-31846.

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