Tuesday, July 16, 2013

House Hearing to Examine Whether Federal Legislation Requiring the Reporting of Data Breaches is Needed to Protect Consumers

The House Energy and Commerce Committee's Subcommittee on Commerce, Manufacturing, and Trade, which is chaired by Rep. Lee Terry (R-NE), will hold a hearing entitled "Reporting Data Breaches: Is Federal Legislation Needed to Protect Consumers?" on Thursday, July 18, 2013, at 10:00 a.m. EST.

For nearly a decade, Congress has been unable to reach a consensus on Federal data breach notification legislation despite much legislative activity. However, since states such as California and New York have had state data breach notification laws on the books for years, most businesses that serve consumers in those states have already adopted nationwide company policies based on compliance with the strictest of the state laws. Accordingly, any Federal legislative solution will likely need to preempt the state laws and provide a reasonable reduction in the current regulatory compliance costs in order to appeal to business interests.
The live webcast of the hearing will be available here.

If you have any questions regarding this hearing or privacy and data-security regulatory or legislative issues, please feel free to contact the TLP team.


Thursday, July 11, 2013

Senate Commerce Committee Chairman Rockefeller to Hold Hearing on Expanding the E-Rate Program

The Senate Committee on Commerce, Science and Transportation, which is chaired by Senator Rockefeller (D-WV), has announced that the Committee will hold a hearing entitled “E-Rate 2.0: Connecting Every Child to the Transformative Power of Technology,” on Wednesday, July 17, 2013 at 2:30 p.m. EST.

The hearing will focus on "strengthening E-Rate and expanding access to the latest digital technology and learning tools" to schools and libraries. Senator Rockefeller and former Senator Snowe (R-ME) were largely responsible for the creation of the E-rate program, which is part of the Universal Service Fund.  Recently, President Obama and FCC Commissioner Rosenworcel "have called for 100 Mbps speeds to schools by 2015, and 1 gig by the end of the decade." The FCC will consider a Notice of Proposed Rulemaking at the Commission's July 19, 2013, open meeting to modernize the E-rate program to support high-speed broadband for digital learning technologies.

The official witness list for the hearing is not yet available. The live webcast of the hearing will be available here.

If you have any questions regarding this hearing, the E-rate program, the Universal Service Fund or any other activity in Congress or at the FCC that could impact the telecommunications, media and technology sectors, please contact any member of the TLP team.


Senate Commerce Committee Leaders Circulate Draft of Compromise Cybersecurity Legislation

Senate Commerce Committee Chairman Rockefeller (D-WV) and Ranking Member Thune (R-ND) have been working on a draft compromise cybersecurity bill in an attempt to break the long stalemate in the Senate on the issue and try to find legislation that can finally garner the votes need to needed pass a bill in the Senate.  A copy of the compromise draft bill is here. The "draft bill would task the National Institute of Standards and Technology (NIST), a Commerce Department agency, with developing voluntary cybersecurity standards and best practices for critical infrastructure," and would seek to "improve cybersecurity research, education and public awareness."  Apparently, Chairman Rockefeller would like the Senate Commerce Committee to markup the compromise legislation before the end of July.

In April 2013, the House approved H.R. 624, the "Cyber Intelligence Sharing and Protection Act (CISPA)," by a bipartisan vote of 288 to 127. And, the President issued his Executive Order on cybersecurity during his State of the Union speech in February 2013.

TLP has helped clients with various issues related to cybersecurity, including preparing a client to testify before the House Energy and Commerce Committee on the subject of cybersecurity and communications networks. If you have any questions regarding the Executive Order or any legislation or activity in Congress that could impact the telecommunications, media and technology sectors, please contact any member of the TLP team.

Wednesday, July 10, 2013

FCC Broadcast Incentive Auction: Congressional Oversight Hearing on July 23

The House Energy and Commerce Committee's Communications and Technology Subcommittee -- which has authority over the Federal Communications Commission and drafted the auction related provisions enacted by Congress in the Spectrum Act in January 2012 -- will hold an oversight hearing on issues related to the broadcast incentive auction provisions of the Spectrum Act. The hearing is entitled "Oversight of Incentive Auction Implementation" will take place on Tuesday, July 23, 2013, at 10:30 a.m. EST.

 
Among other things, the hearing may examine whether the FCC's implementation of the Spectrum Act's provisions will serve to make television broadcasters more or less likely to participate in the voluntary auction process, if the FCC can and should adopt auction rule proposals that would benefit certain large wireless carriers with smaller market shares over the two carriers with the most customers, how much unlicensed spectrum will be available in the proposed guard guards and whether it should be auctioned, and why the Commission subsequently proposed an alternative band plan after it appeared that broad consensus had been achieved for a specific band plan.

Appearing before the Subcommittee members at the hearing will be Gary Epstein of the FCC's Incentive Auction Task Force, Preston Padden of the Expanding Opportunities for Broadcasters Coalition, Joan Marsh of AT&T, Harold Feld of Public Knowledge, Rick Kaplan of the National Association of Broadcasters and Kathleen Ham of T-Mobile US.
 
The live webcast of the hearing will be available here.

If you have any questions regarding this hearing, the FCC's implementation of the Spectrum Act or any other activity in Congress that could impact the telecommunications, media and technology sectors, please contact any member of the TLP team.


Tuesday, July 9, 2013

Senate Commerce Committee To Examine Fraudulent Robocalls

The Senate Commerce Committee's Subcommittee on Consumer Protection, Product Safety and Insurance will be holding a hearing entitled "Stopping Fraudulent Robocall Scams: Can More Be Done?"  on Wednesday, July 10, 2013 at 10:00 a.m. EST.  According to the Committee, the hearing "will examine the consumer harm associated with fraudulent robocalls; the effectiveness of regulations and law enforcement in stopping these calls; and the feasibility of technological solutions aimed at preventing fraudulent robocalls from reaching vulnerable consumers."

Appearing before the Subcommittee will be Lois Greisman of the Federal Trade Commission, Eric Bash of the Federal Communications Commission, Kevin G. Rupy of the United States Telecom Association, Michael F. Altschul of CTIA - The Wireless Association, Matthew Stein of Primus Telecommunications Inc. and Aaron Foss of Nomorobo.

The hearing will be webcast live here.

If you have any questions regarding this hearing or any other activity in Congress that could impact the telecommunications, media and technology sectors, please contact Vance Schuemann or any other member of the TLP team.



 

 

FCC Approves Sprint-SoftBank Transaction

The FCC unanimously voted to approve the Sprint-SoftBank transaction in which SoftBank would acquire Sprint and Sprint would acquire 100 percent of Clearwire’s stock.  The Commission analyzed the potential public interest harms, public interest benefits, and the foreign ownership impact of the transaction. 

Regarding the public interest harm of consolidation, the FCC decided not to modify the spectrum screen in the transaction review proceeding to include more than 55.5 MHz of the 2.5 GHz band, and it found that the transaction would not cause the companies to exceed the spectrum screen in any market.  However, the Commission did condition its approval of the transactions on post-transaction Sprint and SoftBank assuming all of Sprint’s obligations to reconfigure the 800 MHz band, a condition that DISH requested.  The Commission declined to condition the transaction on compliance with the FCC’s open Internet rules because such a condition would “only serve to require entities to comply with legal obligations that are already in effect and fully enforceable.” 

Regarding public interest benefits, the Commission found that approving the transactions will serve the public interest by accelerating the deployment of LTE and advanced mobile broadband services and enhancing competition in the mobile wireless market.  Finally, the Commission found that SoftBank’s indirect foreign ownership of Sprint complies with the Communications Act, and it did not find any public interest harms due to national security concerns. 

If you have any questions regarding the above transaction, please feel free to contact the TLP team.

Monday, July 8, 2013

House Begins to Move H.R. 2122, the Regulatory Accountability Act of 2013

Tomorrow, the House Judiciary Committee's Subcommittee on Regulatory Reform, Commercial and Antitrust Law will hold a hearing on H.R. 2122, the "Regulatory Accountability Act of 2013," at 10:00 a.m. EST.  H.R. 2122 was introduced by House Judiciary Committee Chairman Goodlatte (R-VA).

Testifying at the legislative hearing will be Jeffrey A. Rosen of Kirkland & Ellis LLP, Keith Hall of the Mercatus Center at George Mason University, Diana Thomas of the Huntsman School of Business, Robert A. Sells of Titan America Mid-Atlantic Business Division, David Goldston of the Natural Resources Defense Council and Ronald M. Levin of the Washington University School of Law.


Bipartisan legislation similar to H.R. 2122 was introduced during the last Congress in both the House and the Senate by Reps. Smith (R-TX), Coble (R-NC) and Peterson (D-MN) as well as Senators Portman (R-OH) and Pryor (D-AK), the current chair of the Senate Communications Subcommittee.  And, that legislation was approved -- despite a veto threat by the White House -- in the House in December 2011 by a vote of 253 to 167, but it subsequently stalled in the Senate without further action.

According to the Congressional Research Service, H.R. 2122 would:
  • Amend the Administrative Procedure Act to revise and expand the requirements for federal agency rulemaking by requiring agencies, in making a rule, to base all preliminary and final factual determinations on evidence and to consider the legal authority under which the rule may be proposed, the specific nature and significance of the problem the agency may address with the rule, any reasonable alternatives for the rule, and the potential costs and benefits associated with such alternatives.

  • Require agencies to publish advance notice of proposed rulemaking for major rules and for high-impact rules (rules having an annual cost on the economy of $100 million or $1 billion or more, respectively) and for rules that involve a novel legal or policy issue arising out of statutory mandates, which shall include a written statement identifying the nature and significance of the problem the agency may address with a rule, the legal authority under which the rule may be proposed, the nature of and potential reasons to adopt a novel legal or policy position, and a solicitation for written data, views, or arguments from interested persons.

  • Set forth criteria for issuing major guidance (agency guidance that is likely to lead to an annual cost on the economy of $100 million or more, a major increase in cost or prices, or significant adverse effects on competition, employment, investment, productivity, innovation, or ability to compete) or guidance that involves a novel legal or policy issue arising out of statutory mandates.

  • Expand the scope of judicial review of agency rulemaking by allowing immediate review of rulemaking not in compliance with notice requirements and establishing a substantial evidence standard for affirming agency rulemaking decisions.

If you have any questions regarding this legislative hearing or any other activity in Congress that could impact the telecommunications, media and technology sectors, please contact Vance Schuemann or any other member of the TLP team.

Friday, July 5, 2013

House Set to Pass FCC Process Reform Legislation Again; First Legislative Hearing on July 11

The House Energy and Commerce Committee's Subcommittee on Communications and Technology, chaired by Rep. Walden (R-OR), has announced that it will hold a hearing entitled ""Improving FCC Process" on Thursday, July 11, 2013, at 10:30 a.m. EST.

The following witnesses will appear before the Subcommittee: Stuart M. Benjamin of Duke Law School; Larry Downe, the author of The FCC's Unstructured Role in Transaction Reviews; Robert M. McDowell, a former FCC Commissioner and Visiting Fellow at the Hudson Institute; Randolph J. May of the Free State Foundation; Richard J. Pierce Jr. of the George Washington University Law School and James Bradford Ramsay of the National Association of Regulatory Utility Commissioners.
 
During the 112th Congress, the full House passed H.R. 3309, the FCC Process Reform Act, and H.R. 3310, the FCC Consolidated Reporting Act, and the Subcommittee will "review discussion drafts similar to the legislation approved last Congress" at the July 11 hearing.

The hearing will be webcast live here, and the majority Committee staff's background memorandum for the hearing is available here. The Democratic staff's briefing memoradum for the hearing is available here. Copies of the new discussion drafts of the FCC Process Reform Act of 2013 and the FCC Consolidated Reporting Act of 2013 are available here and here

One notable change from last year's legislation is that the full Commission would be able to review items delegated to the FCC's bureaus before adoption, and bureau items will require a Commission level vote if two or more of the Commissioners request such a vote. Given that the FCC's authority stems from Congress, such a requirement will restore some accountability at the FCC by forcing the Senate-confirmed Commissioners to make the important decisions rather than allowing the Chairman and his appointed bureau chiefs to circumvent the democratic process. 

If you have any questions regarding this legislative hearing or any other activity in Congress that could impact the telecommunications, media and technology sectors, please contact Vance Schuemann or any other member of the TLP team.
 
 

Tuesday, July 2, 2013

Congress to Examine Cyber Espionage and the Theft of U.S. Intellectual Property and Technology

The House Energy and Commerce Committee's Subcommittee on Oversight and Investigations, which is chaired by Rep. Murphy (R-PA), will hold a hearing entitled "Cyber Espionage and the Theft of U.S. Intellectual Property and Technology" on Tuesday, July 9, 2013, at 10:15 a.m. EST.  The hearing will continue the Committee's focus on "cyber threats and security solutions" by "examining the scope and nature of threats from cyber espionage to U.S. intellectual property and technology," and Subcommittee members will "review proposed policy solutions to better protect U.S. intellectual property and technology from cyber threats emanating from state actors, including best practices, enhanced information sharing, and public-private partnerships."

Appearing as witnesses at the hearing will be former Senator Slade Gorton of the Commission on the Theft of American Intellectual Property, Larry M. Wortzel of the U.S.- China Economic and Security Review Commission, James A. Lewis of the Center for Strategic and International Studies and Susan Offutt of the Government Accountability Office.

The hearing will be webcast live here, and the Committee's background memorandum for the hearing is available here.

During May 2013, the House Energy and Commerce Committee and its Subcommittee on Communications and Technology held hearings entitled "Cyber Threats and Security Solutions," focusing on the President's Executive Order, and "Cybersecurity: An Examination of the Communications Supply Chain," respectively.  House Communications and Technology Subcommittee Chairman Walden (R-OR) and Ranking Member Eshoo (D-CA) have also established a bipartisan working group to closely study the of issue communications network supply chain cybersecurity and determine the appropriate policy responses.

In April 2013, the House approved H.R. 624, the "Cyber Intelligence Sharing and Protection Act (CISPA)," by a bipartisan vote of 288 to 127.  The full Senate has yet to consider any cybersecurity legislation during this Congress.

TLP has helped clients with issues related to cybersecurity, including preparing a client to testify before the House Energy and Commerce Committee on the subject of cybersecurity and communications networks. If you have any questions regarding this hearing, the Executive Order or any legislation or activity in Congress that could impact the telecommunications, media and technology sectors, please contact Vance Schuemann or any member of the TLP team.

CTIA Petition for Recon. on Text-to-911

CTIA filed a Petition for Reconsideration or Clarification of the FCC’s text-to-911 rule to the extent that it imposes roaming obligations.  Specifically, paragraph 72 of the Text-to-911 Report and Order (“R&O”) requires carriers to “make automatic bounce-back messages available to consumers roaming on their network to the same extent they provide such messages to their own subscribers.”  CTIA asserts that the roaming requirement should be eliminated because it is technically infeasible.  Alternatively, CTIA requests that the FCC only require the home carrier, and not the serving carrier, to provide bounce-back messages to its customers.

CTIA explains that SMS messages that are sent while a customer is roaming are “routed to a subscriber’s home network for processing, regardless of the network from which the message originated.”  CTIA concludes, therefore, that serving carriers do not have the technical capability to provide a bounce-back message because they are not responsible for transmitting the customer’s initial message to 911.  CTIA points out that a roaming requirement was excluded from the voluntary text-to-911 agreement because of this infeasibility.  CTIA seeks to allay FCC concerns that roaming customers will not receive a bounce back message if the rule is eliminated by explaining that, in practice, home carriers will always be required to send a bounce-back message to its roaming customers.  This duty arises because SMS messages that are sent between carriers do not automatically include location information, so the home carrier will never be able to deliver the roaming customer’s text message to the appropriate PSAP.  To comply with the bounce-back rule, therefore, the home carrier will always send a bounce-back message to its roaming customers.  If the FCC refuses to eliminate the roaming requirement, then CTIA asks the Commission to clarify that Section 20.18(n)(7) of the rule applies only to home network operators because “only the home carrier has the capability to generate the required bounce-back message.” 

Please feel free to contact us with any questions regarding the proceeding.