April 9, 2013
Welcome to the “ACUTA Legislative/Regulatory Update,” a monthly electronic newsletter summarizing Federal regulatory and legislative developments of interest to information communications technology (ICT) professionals in higher education. This membership benefit is provided monthly to all named representatives of Institutional, Corporate Affiliate, Associate and Emeritus members. This update covers the period from March 9, through April 5, 2013.
“ACUTA Legislative/Regulatory Update” is based primarily on information provided to the ACUTA Legislative/Regulatory Affairs Committee by attorneys Kenneth D. Salomon of Thompson Coburn, LLP and J.G. Harrington of Dow Lohnes Government Strategies LLC, law firms located in Washington, DC with extensive ICT and media expertise.
**We encourage you to forward this Update to other interested parties within your institution, such as legal counsel, governmental relations staff, security officers, and Chief Information Officers.**
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CONGRESS
Congress began a two week work period on March 22. The House returns to Washington on April 8 followed by the Senate on April 9. The main legislative focus after Congress returns is likely to be comprehensive immigration reform, although cybersecurity efforts will resume.
Cybersecurity
The continued flurry of congressional activity on cybersecurity can best be summed up by the March 13 comments of a POLITICO Pro Technology reporter:
Cybersecurity reform is quickly becoming Capitol Hill’s Hydra – whenever a lawmaker gavels one hearing to a close, other members call for more hearings, bills and debates quickly multiply.
It’s probably no surprise, then, that the five congressional hearings on the issue in just two weeks - - three of which happened on Wednesday [March 13] – have spawned an entire chorus of reformers who are angling to do more than just protect the nation’s power plants, water systems and other forms of critical infrastructure from crippling cyberattacks. * * *
It all speaks to the tough road still ahead for lawmakers hoping to slay the cybersecurity beast – a victory that’s eluded the [Congress] for years.
Nevertheless, the House Majority Leader on March 15 said that House Republicans intend to “consider” cybersecurity legislation in April. In addition, the Obama Administration announced April 4 that it will hold three in-depth workshops on the President’s February 12 Executive Order, for “Improving Critical Infrastructure Cybersecurity, http://www.whitehouse.gov/the-press-office/2013/02/12/executive-order-improving-critical-infrastructure-cybersecurity. The National Institute for Standards and Technology (NIST) is organizing the sessions as part of NIST’s drafting a “Cybersecurity Framework” pursuant to the Executive Order. The first workshop will be held at Carnegie Mellon University on May 29-31, http://www.hstoday.us/index.php?id=3428&no_cache=1&tx_ttnews%5Btt_news%5D=30371. It will feature working roundtables on key topics of the Cybersecurity Framework, including basic cyberhygiene, risk management, tools and metrics, existing practices and gaps. The other workshops are tentatively slated for July 15 and September 9. The goal is to gather industry input and complete a first draft of the Cybersecurity Framework by October.
Electronic Communications Privacy Reform Act
Senate Judiciary Committee Chairman Leahy (D-VT) introduced the Electronic Communications Privacy Act Amendments, S. 607, on March 19. It requires government officials to obtain a search warrant before accessing e-mails and other private online content. Under current law, dating back to 1986, the government only needs a subpoena to gain access to read emails that have been opened or that are more than 180 days old. The Leahy bill also requires the government to promptly notify an individual if their private online information has been accessed, although the government could obtain a court order to delay notification to protect an ongoing investigation.
Also on the 19th, the House Judiciary Subcommittee on Subcommittee on Crime, Terrorism, Homeland Security and Investigations held an Electronic Communications Privacy Act (ECPA) hearing to consider the need to clarify the protections of e-mails, text, and information stored in the cloud from unreasonable searches and seizures by the government and in civil suits. Subcommittee Chairman Sensenbrenner (R-WI) told the hearing that it would have to be a balancing act between protecting privacy and allowing for law enforcement investigation of crime, characterizing the task as a "tough nut to crack." During the hearing, full Committee Chairman Goodlatte (R-VA) said that updating ECPA was a top Committee priority.
Cellphone Unlocking
The bipartisan efforts to legalize cellphone unlocking to enable owners of devices to switch it to the wireless carrier of their choice came into sharper focus last month. While several bills were introduced in the Senate in early March, the Unlocking Consumer Choice and Wireless Competition Act (S. 517) offered by Judiciary Committee Chairman Leahy and Ranking Member Grassley (R-IA), together with five other key Senators, effectively cleared the field in the Senate. Similarly, House Judiciary Committee Chairman Goodlatte and Ranking Member Conyers (D-MI) introduced their bill (H.R. 1123) on March 14 together with the Chairman and Ranking Member of the Judiciary Intellectual Property and Technology Subcommittee. These bills by the leadership of the House and Senate Committees of jurisdiction will be vehicles that Congress considers rather than the bills previously introduced and noted in our report last month. The Unlocking Consumer Choice and Wireless Competition Act temporarily restores the exemption to the Digital Millennium Copyright Act (DMCA) that permits consumers, once they have fulfilled their contractual obligation, to unlock their cell phones without the approval of their wireless provider. It also directs the Copyright Office to determine whether similar treatment should be given to other wireless devices.
Late in March, several tech advocacy organizations sent a letter to Leahy and Goodlatte asking them to permanently ensure a DMCA exemption for cellphone unlocking and imploring Congress to look at the statute’s anti-circumvention provisions in more detail.
Spectrum
The Ranking GOP member of the Senate Commerce Committee, Senator John Thune (R-SD) called on March 21 for the National Telecommunications and Information Administration to focus on reallocating the 1695-1710 and 1755-1780 MHz bands for as much exclusive, non-federal use as possible.
Rural Communications
The Senate Communications Subcommittee will hold an April 9 hearing on the state of rural communications. The Subcommittee will examine the strengths and challenges of the rural communications market, and look at the hurdles facing companies that serve rural consumers.
Internet Governance
The House Subcommittee on Communications and Technology will mark up a draft bill to “affirm the policy of the United States regarding Internet governance” on April 10 and 11. Congress and the Administration are concerned, as the Subcommittee’s Majority staff memorandum describes, that “attempts to drag the Internet within the ambit of international regulatory bodies just might succeed.” These efforts have largely been led by China, Russia and Iran, among other nations. The House and Senate last year unanimously passed resolutions opposing treaty proposals at the December 2012 World Conference on International Telecommunications (WCIT-12) to subject the Internet to regulation by the International Telecommunication Union, a United Nations agency. The congressional resolutions helped prompt 54 nations to join the United States in refusing to sign the treaty, but many are convinced that international efforts to regulate the Internet will continue. In February, the Subcommittee and the House Foreign Affairs Committee held a joint hearing on the issue, including discussion of draft legislation to convert the 2012 unanimous resolutions into U.S. policy. In its current form, the draft legislation states that “[i]t is the policy of the United States to promote a global Internet free from government control and to preserve and advance the successful multi-stakeholder model that governs the Internet.”
FCC Oversight Hearing/E-Rate 2.0
The Senate Commerce Committee on March 12 conducted an FCC oversight hearing. The five Commissioners testified. During the hearing, Chairman Rockefeller said it was necessary to create a new generation of the E-Rate program, E-Rate 2.0 that would provide every school with at least one Gigabit connection by 2020. The Chairman also expressed his desire to see E-Rate funding expanded from $5 billion to $9 billion by 2020. Commissioner Rosenworcel supported Rockefeller’s position during the hearing and noted that the demand for E-Rate funding is double the amount made available by the FCC annually.
FCC Chairman
Both FCC Chairman Genachowski, a Democrat, and Commissioner McDowell, a Republican, announced their resignations in late March. Genachowski’s announcement came on March 22 while McDowell announced his decision at the start of the FCC’s March 20 open meeting. On March 22, 37 Democratic Senators wrote to President Obama to urge him to appoint Commissioner Rosenworcel as the next FCC Chairman. If appointed, Rosenworcel would be the first female to chair the agency. With both a GOP and a Democratic vacancy, it is most likely that the President will “pair” the nominations to facilitate the confirmation process. This was done most recently when Commissioner Rosenworcel, a Democrat, was paired with Commissioner Pai, a Republican.
FCC
FCC Holds Technology Transitions Workshop
FCC Adopts Notice of Proposed Rulemaking on 9-1-1 Resiliency
On March 20, the FCC adopted a notice of proposed rulemaking to examine specific steps to improve the reliability of 9-1-1 service. The notice asks for comment on the appropriate steps to take to: (1) Ensure that there are periodic audits of 9-1-1 circuits for physical diversity; (2) Ensure that adequate central office backup power is maintained; and (3) Maintain reliable and resilient network monitoring systems. The notice asks what mechanisms could be used to achieve these goals, including reporting, certification, specific reliability requirements and inspections. Comments and reply comments are due 30 and 45 days, respectively, after notice of the proposals is published in the Federal Register. The press release is available athttp://transition.fcc.gov/Daily_Releases/Daily_Business/2013/db0320/DOC-319689A1.pdf, and the notice itself is available athttp://transition.fcc.gov/Daily_Releases/Daily_Business/2013/db0320/FCC-13-33A1.pdf.
Annual Wireless Competition Report Is Released
FCC Holds Workshop on Gigabit Community Broadband Networks
FCC Issues Order and Rulemaking Notice on RF Exposure
On March 29, the FCC issued an order and notice of proposed rulemaking on its rules governing human exposure to radiofrequency radiation. The order makes what the FCC describes as “technical, non-substantive” changes to the rules that do not affect the limits on exposure to radiation, but do affect how it is measured and how parties can demonstrate compliance with the rules. The notice of proposed rulemaking is focused on harmonizing and streamlining the rules so that evaluation of RF emissions is based on the physical properties of RF-emitting devices rather than the services to which those devices are assigned. The FCC is proposing this change, in part, because more devices are designed to use multiple frequencies at varying power levels. In addition, the proceeding will include a notice of inquiry to begin a more general review of the FCC’s RF exposure policies, including exposure limits, options for what the FCC describes as “precautionary exposure reduction” and the process for approving equipment authorizations. Comments and reply comments on the notice will be due, respectively, 90 and 120 days after publication in theFederal Register. The notice is available at http://transition.fcc.gov/Daily_Releases/Daily_Business/2013/db0329/FCC-13-39A1.pdf.
Other Regulatory Issues
T-Mobile Acquisition of MetroPCS Approved
FCC Acts to Reduce Indecency Complaint Backlog
On April 1, the FCC released a public notice announcing that it had released its backlog of complaints concerning broadcast indecency by approximately 70%, largely by dismissing more than one million pending complaints. (This, apparently, leaves more than 400,000 complaints pending.) In the notice, the FCC also asked for comment on whether it should it should change its broadcast indecency policies. Although it mentioned some examples of changes that could be made, the public notice did not propose any specific modifications. Comments and reply comments will be due 30 and 60 days, respectively, after notice is published in the Federal Register. The public notice is available at http://transition.fcc.gov/Daily_Releases/Daily_Business/2013/db0401/DA-13-581A1.pdf.
New Limitations on Television Modification Applications Adopted
On April 5, the FCC announced that it would enforce new limitations on applications to modify existing television licenses. Under the limits, new applications will not be accepted and pending applications will not be processed if the modified facilities would increase the noise-limited contour of a full-power station or the protected contour of a Class A station. The FCC will, however, accept minor change applications for Class A stations to implement the digital transition. These new processing standards went into effect immediately, and are intended to preserve the FCC’s ability to repack television stations following the planned incentive auction. The public notice announcing the new processing standards is available at http://transition.fcc.gov/Daily_Releases/Daily_Business/2013/db0405/DA-13-618A1.pdf.
FCC Issues Citations to Robocallers
On March 15, the FCC issued official citations to two companies that persistently have made autodialed calls to mobile phones in violation of the FCC’s rules. The citations, which are official FCC findings of violation but do not include fines, were issued to Dialing Services, LLC and Democratic Dialing. The FCC found that the two companies had each made more than one million unauthorized calls to wireless customers. The FCC press release is available at http://transition.fcc.gov/Daily_Releases/Daily_Business/2013/db0315/DOC-319535A1.pdf, the citation against Dialing Services is available athttp://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-13-265A1.pdf and the citation against Democratic Dialing is available athttp://transition.fcc.gov/Daily_Releases/Daily_Business/2013/db0315/DA-13-264A1.pdf.
