Capital Thinking Update - April 16, 2012

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General Legislative

On Monday, April 16, 2012, the House will meet at 2:00 p.m. for legislative business. The House will consider the following bills under suspension of the rules: H.R. 3001, the Raoul Wallenberg Centennial Celebration Act; H.R. 1815, the Lena Horne Recognition Act; H.R. 4040, a bill to provide for the award of gold medal on behalf of Jack Nicklaus in recognition of his service to the Nation in promoting excellence and good sportsmanship in golf; and H.R. 2453, the Mark Twain Commemorative Coin Act. The Senate convenes at 2:00 p.m. on Monday and will resume consideration of the motion to proceed to S. 2230, the Paying a Fair Share Act. At 4:30 p.m., the Senate will proceed to executive session to consider the nomination of Stephanie Dawn Thacker to be United States Circuit Judge for the Fourth Circuit.


Agriculture

LEGISLATIVE ACTIVITY


  • Senators Introduce Proposed Farm Bill Commodity Title. On March 29, Senate Budget Committee Chairman Kent Conrad (D-ND), Senate Finance Committee Chairman Max Baucus (D-MT), and Senator John Hoeven (R-ND) introduced a commodity title that they are seeking to have included in the next Farm Bill. The Senators maintain that their proposal – the Revenue Loss Assistance and Crop Insurance Enhancement Act of 2012 – would modify existing USDA risk management programs to ensure better protection for Northern Plains farmers under the elimination of direct payments than the “shallow loss” and other proposals that have already been introduced. Their bill also includes disaster programs for livestock and tree producers.
  • Senate Agriculture Committee Leaders Introduce Research Foundation Bill. On March 29, Senate Agriculture Committee Chairman Debbie Stabenow (D-MI) and Ranking Member Pat Roberts (R-KS) introduced legislation to establish a foundation to solicit private donations to enhance agricultural research. Modeled after existing foundations connected to federal entities, such as the Foundation for the National Institutes of Health, the bill authorizes the establishment of the Foundation for Food and Agriculture Research, a 501(c)(3) nonprofit organization that would allow individuals and organizations to provide tax exempt donations toward agriculture research, at a time when Congressional appropriations for agriculture research continue to decrease.
  • House Farm Bill Field Hearing. On March 30, the House Agriculture Committee held another field hearing to assist in the formulation of the Farm Bill. The hearing took place at Arkansas State University. The Members heard from two panels of witnesses who represented rice, cotton, peanut, corn, soybean, grain sorghum, and aquaculture producers. Discussion focused on the conservation program, the potential elimination of direct payments to producers, and what type of risk management program would sufficiently protect producers in times of loss or low prices. 
  • Upcoming Hearings. On Friday, April 20, the House Agriculture Committee will hold a field hearing in Dodge City, Kansas. The Committee is also expected to announce soon a series of hearings in Washington in late April or May to further examine the Farm Bill.

REGULATORY ACTIVITY

  • Country-of-Origin Labeling. The Obama Administration has decided to challenge the World Trade Organization’s (WTO) November decision that U.S. country-of-origin laws requiring beef and pork to be labeled with a country of origin violate rules against technical barriers to trade. The case was brought by Canada and Mexico, which argued before the WTO that livestock processed in the United States should be labeled as U.S. origin even if they were born elsewhere.
  • Antibiotic Use in Animals. Pursuant to a recent court decision requiring FDA to examine the use of antibiotics in livestock production, the FDA issued on April 11 a long-awaited guidance on the use of antimicrobial drugs in food-producing animals. The voluntary guidelines are intended to address concerns that the overuse of drugs in animals is causing a decreasing effectiveness of antibiotics in humans. The guidance states that drugs can be used only for therapeutic purposes and not put in feed to promote growth. While drug makers are cautiously supportive of the guidance, pending details regarding implementation, the National Pork Producers Council has expressed concerns that it will raise production costs and hurt small farmers. The food advocacy groups that sued FDA to release the guidelines have stated that voluntary guidelines are not sufficient to ensure responsible use of antibiotics in food production.

Budget, Appropriations

LEGISLATIVE ACTIVITY

  • House FY 2013 Budget Resolution. After voting down six alternative budgets, the House approved Budget Committee Chairman Paul Ryan’s (R-WI) FY 2013 Budget Resolution (H. Con. Res. 112) by a vote of 228 to 191 on March 29. With the Senate vowing to stick to the discretionary spending cap of $1.047 trillion established in last year’s Budget Control Act (P.L. 112-25), the House resolution, which sets a spending limit of $1.028 trillion, will not be approved in the Senate, but will serve several purposes: (1) it establishes fiscal talking points for Republicans heading into the elections; (2) it sets the Republican “bar” for deficit reduction negotiations expected to occupy much of the lame duck session; (3) it instructs six committees to come up with the spending cuts necessary to avoid sequestration in time for a May vote; and (4) it ensures another very contentious and prolonged appropriations reconciliation process.
  • Senate FY 2013 Budget Action. Senate Majority Leader Harry Reid (D-NV) has repeatedly stated that an FY 2013 budget resolution is unnecessary because the spending limit is already established (in the Budget Control Act). However, Senate Budget Committee Chairman Kent Conrad (D-ND) intends to markup a budget resolution which includes a long-term deficit reduction plan when the Senate returns from recess this week, possibly as early as Tuesday. Currently, there is no plan to bring the proposal to the floor for a vote; however, a recent opinion from the Senate Parliamentarian Elizabeth MacDonough states that the Budget Control Act does not preclude any Member from introducing an alternative budget resolution outside of the committee process after the April 1 statutory deadline has passed  (The Congressional Budget Act requires the Senate Budget Committee to adopt a budget resolution by April 1, and the full Senate to adopt a resolution by Sunday, April 15. There is no penalty if the deadline is not met). Senators Patrick Toomey (R-PA) and Rand Paul (R-KY) each introduced budget resolutions prior to the recess (S. Con. Res. 37 and S. Con. Res. 39, respectively). Therefore, it is likely that we may see Senate votes on the House Budget Resolution and the President’s Budget Proposal, among others.
  • Congressional Appropriations Committee Hearings. Senate Appropriations Subcommittees will continue hearings on the President’s FY 2013 Budget Request this week (see below) and House Appropriations Subcommittees may schedule the first markups of FY 2013 spending bills.
    United States Forest Service (Interior – Wednesday, April 18); the Missile Defense Agency (Defense – April 18); General Services Administration (Financial Services – Wednesday, April 18); and the Food and Drug Administration (Agriculture – Thursday, April 19). 

Education

LEGISLATIVE ACTIVITY


  • Workforce Investment Legislation. As previously reported, Chairman Ryan’s FY 2013 Budget Resolution would consolidate duplicative federal job-training programs into a streamlined workforce development system with fewer funding streams. On the same day, the House approved that resolution (March 29, 2012), Members of the House Education and the Workforce Committee’s Subcommittee on Higher Education and Workforce Training – Virginia Foxx (R-NC, Subcommittee Chair), Howard P. “Buck” McKeon (R-CA), and Joe Heck (R-NV) – introduced legislation to consolidate 27 existing job training programs into a single Workforce Investment Fund aimed at assisting state and local workforce investment boards to develop comprehensive workforce development systems to get Americans back to work, including a new formula for employment and training programs. The bill, the Workforce Investment Improvement Act of 2012 (H.R. 4297), seeks to consolidate ineffective and redundant programs, cut through bureaucracy, empower employers and promote accountability. A hearing to consider the legislation is scheduled for Tuesday, April 17 at 10:00 a.m.

    House Democrats on the Committee also have introduced legislation (H.R. 4227) related to workforce issues, but it is not expected to gain momentum in the House.
  • Federal Direct Loan Program. House and Senate Republicans sent a letter March 27 to Government Accountability Office (GAO) Comptroller General Gene Dodaro related to concerns over the management of student debt, particularly in rehabilitating defaulted loans. The letter was signed by House Education and the Workforce Chairman John Kline (R-MN), Representative Virginia Foxx, Representative Judy Biggert (R-IL), Senate Committee on Health, Education, Labor, and Pensions (HELP) Ranking Member Michael B. Enzi (R-WY), Senator Lamar Alexander (R-TN), and Senator Tom Coburn (R-OK), and requests the GAO to provide information about the Department of Education’s administrative and debt collection processes. House Education and the Workforce Committee Republicans are seeking feedback from borrowers and institution officials who have experienced difficulties with the Direct Loan Program, such as problems rehabilitating loans, issues with debt collection, privacy concerns, and poor customer service.
  • Hearings. On Wednesday, April 18 at 10:00 a.m., the Senate HELP Committee will hold a Full Committee hearing titled “Effective Strategies for Accelerated Learning.” As noted above, the House Education and Workforce Committee also will hold a Full Committee hearing on Tuesday, April 17 to consider the “Workforce Investment Improvement Act of 2012.”

REGULATORY ACTIVITY

  • Military Service Members’ Education. In December 2011, a majority bipartisan coalition of 52 Senators sent a letter to Department of Defense (DOD) Secretary Leon Panetta urging the Department to delay and improve a required Memorandum of Understanding (MOU) for colleges participating in tuition assistance programs for active duty military service members. The DOD in response granted a three-month extension for signing the MOU, which expired at the end of March. While a revised text has not yet been released, the DOD is now saying that it will not take effect until this summer and has indicated that the most controversial requirements have been dropped in favor of a call for more disclosure. The new requirements appear to target the for-profit colleges that receive half of all tuition assistance money. According to the DOD, more than 2,000 colleges and universities have already signed the MOU. Those that have not can continue operating under the existing MOU until the new version goes into effect this summer, and colleges that have already signed the memorandum will not be required to sign it again.

    On Monday, April 9, the National Association of College and University Business Officers, in coordination with several other higher education associations, sent a letter to Veterans Affairs Secretary Eric Shinseki protesting the Department’s intention to resume withholding unpaid debts from veterans’ tuition and fee payments, which could result in colleges becoming the debt collectors. The letter also requests the Department to develop a system in which college officials can review veterans’ benefit eligibility, overpayment amounts, and other factors impacting the amount of aid they receive.
  • Big Data Initiative. On March 29, President Obama announced a new $200 million, interagency initiative called the “Big Data Research and Development Initiative.” As part of this effort, the White House Office of Science and Technology Policy (OSTP) will work with the National Science Foundation, Department of Health and Human Services/National Institutes of Health, Department of Energy, Department of Defense (DOD), Defense Advanced Research Projects Agency, and United States Geological Survey to: (1) advance core technologies needed to collect, store, preserve, manage, analyze and share huge quantities of data; (2) harness core technologies to accelerate the pace of discovery in science and engineering, strengthen national security, and improve teaching and learning; and (3) expand the workforce needed to develop and use core technologies. While some awards have already been announced, the initiative also will include the offering of new competitive grants to meet these objectives, particularly through the DOD. 
  • School Improvement Grants. The GAO released a report Wednesday, April 11 on the School Improvement Grant (SIG) program, which funds reforms in low performing schools. In the report, the GAO called on the Department of Education to “(1) provide additional support to states about making evidence-based grant renewal decisions and (2) ensure that contractor performance is reviewed.”
  • No Child Left Behind (NCLB) Waivers. On March 20, the National Indian Education Association sent a letter to Secretary of Education Arne Duncan expressing concerns that some of the NCLB granted waivers allowed minorities to be included in a “super-subgroup category,” which may “not be detailed enough to provide visibility on the progress of American Indian, Alaska Native, and Native Hawaiian students.” The letter asks the Department for assurances that the input of American Indian and Native communities has been or will be considered as part of the request process.

Energy

LEGISLATIVE ACTIVITY


  • Congressional Hearings. On Wednesday, April 18, a House Energy and Commerce Subcommittee will hold an oversight hearing on budget and spending concerns at the Department of Energy. On Thursday, April 19, the Senate Energy and Natural Resources Committee will receive testimony on the impacts of sea level rise on domestic energy and water infrastructure; a House Natural Resources Subcommittee will hold an oversight hearing on the Bureau of Land Management’s pending hydraulic fracturing rule’s impacts on tribal energy development.

REGULATORY ACTIVITY

  • BLM Permitting. Plans to implement a new automated tracking system could reduce the review period for drilling permits by two-thirds (to as few as 60 days) and expedite the sale and processing of federal oil and natural gas leases. It is part of an effort to promote energy development of public lands and is expected to be fully operational by May 2013.
  • OESC. The next Ocean Energy Safety Advisory Committee meeting will be held in Houston on April 26.
  • Hydraulic Fracturing. The Environmental protection Agency (EPA) is delaying issuance of long-awaited air standards for natural gas wells until approximately Tuesday, April 17 in order “to fully address the issues raised in the more than 156,000 public comments we received on the proposed rules.”
  • OCS Discharge Removal Equipment. Comments on the Coast Guard’s notice of intent to finalize regulations regarding discharge removal equipment for vessels carrying oil are due May 29. The interim final rule was originally published in December 1993.
  • Alaska OCS Special Interest Sale #244. Responses to the Bureau of Ocean Energy Management’s request for interest, which seeks to determine industry interest levels for a possible lease sale in the Cook Inlet planning area in 2013, are due by May 11.
  • Carbon Standards for New Power Plants. Comments on EPA's proposed new source performance standards for carbon emissions from new fossil fuel-fired power plants are due June 12. EPA will also be holding public hearings on the proposal to solicit feedback.

Environment

LEGISLATIVE ACTIVITY


  • Tribal Lands Hydraulic Fracturing. On Thursday, April 19, the House Committee on Natural Resources, Subcommittee on Indian and Alaska Native Affairs will hold an oversight hearing on the potential impact of a forthcoming Bureau of Land Management hydraulic fracturing rule on Indian Tribal energy development.
  • Renewable Energy Technology. On Thursday, April 19, the House Committee on Science Space and Technology, Subcommittee on Investigation and Oversight, in conjunction with the Subcommittee on Energy and Environment, will hold a hearing concerning the impact of tax policies on the commercial application of renewable energy technology.
  • Farm Bill Field Hearing On Friday, April 20, the House Committee on Agriculture will hold a Full Committee field hearing on the Farm Bill in Kansas. The hearing will take place at the Magouirk Conference Center, 4100 W. Comanche in Dodge City, Kansas 67801.

REGULATORY ACTIVITY

  • Public Water Systems. EPA is hosting a public meeting concerning information that may inform the regulatory review of the uncovered finished water reservoir requirement in the Long Term 2 Enhanced Surface Water Treatment Rule (LT2 rule). The purpose of the LT2 rule, promulgated in 2006, is to reduce disease incidence associated with Cryptosporidium and other disease-causing microorganisms in drinking water. The rule includes requirements for public water systems to either cover an uncovered finished water storage facility or treat the storage facility discharge to address the risk of contamination. The meeting will be held on April 24 from 8 a.m. to 5 p.m. EST at the EPA East Building, Room 1153, 1201 Constitution Avenue NW, Washington, DC 20460.
  • River Protection. EPA and American Rivers have announced the six recipients of $1,373,119 in environmental grants to benefit communities and protect rivers and clean water in the Potomac Highlands region of Maryland, Pennsylvania, Virginia and West Virginia. The Highlands region is the headwaters of the Potomac River, which flows through the nation’s capital. The region’s streams and forests, which provide an estimated 186,000 jobs in the timber industry are a habitat for fish, wildlife and plants, as well as an increasingly popular recreation and tourism destination. Many of the region’s streams have been damaged by development activities. American Rivers has also announced the availability of a second round of funding through the Potomac Highlands Implementation Grant Program. Awards will range between $150,000 and $300,000. Proposals are due May 25.

Financial Services

LEGISLATIVE ACTIVITY


  • House Oversight Committee to Hold SEC Oversight Hearing. On Tuesday, April 17, the House Oversight Committee will hold a hearing titled “The SEC’s Aversion to Cost-Benefit Analysis.”
  • Senate Banking Committee to Discuss Export-Import Bank. On Tuesday, April 17, the Senate Banking Committee will conduct a hearing at 10 a.m. titled “Export-Import Bank Reauthorization: Saving American Jobs and Supporting American Exporters.” Witnesses will represent the U.S. Chamber of Commerce; the Small Business Exporters Association; the National Association of Manufacturers; and the International Association of Machinists and Aerospace Workers.
  • House Subcommittee to Discuss Office of Financial Research. On Thursday, April 19, the House Financial Services Subcommittee on Oversight and Investigations will hold a hearing at 10 a.m. titled “Budget Hearing—the Office of Financial Research.” The mission of the Office of Financial Research, created by the Dodd-Frank Wall Street Reform and Consumer Protection Act, is to collect and analyze financial market information to identify and mitigate systemic risk.

REGULATORY ACTIVITY

  • CFTC to Hold Rulemaking Meeting. On Wednesday, April 18, the Commodity Futures Trading Commission (CFTC) will hold a public meeting to vote on two final rules. The first is a joint rule promulgated by the CFTC and the SEC further defining “Swap Dealer,” “Security-Based Swap Dealer,” “Major Swap Participant,” “Major Security-Based Swap Participant,” and “Eligible Contract Participant”; the second rule relates to commodity options.

Health Care

LEGISLATIVE ACTIVITY


  • House Budget Hearing. On Tuesday, April 17, the House Committee on the Budget will hold a hearing on “Strengthening the Safety Net.” Witnesses include Casey Mulligan, Professor of Economics at the University of Chicago, Ron Haskins of the Center on Children and Families, Brookings Institution; Robert Rector with the Heritage Foundation; and Robert Greenstein, President of the Center on Budget and Policy Priorities.
  • House E&C Hearing. The House Energy and Commerce Subcommittee on Health has scheduled a hearing on Wednesday, April 18 titled “FDA User Fees 2012: How Innovation Helps Patients and Jobs.”
  • Senate Appropriations Hearing. The Senate Committee on Appropriations Agriculture Subcommittee will hold a hearing on Thursday, April 19 on the 2013 budget request for the Food and Drug Administration (FDA) with the FDA Commissioner, Dr. Peggy Hamburg.
  • Senate VA Hearing. The Senate Committee on Veterans’ Affairs will hold a field hearing on Saturday, April 21 in Billings, Montana on “Improving Access to Quality Healthcare for Rural Veterans.”

REGULATORY ACTIVITY

  • CMS Proposed CQM for EHR Incentive Program. The Center for Medicare and Medicaid Services (CMS has posted the full set of proposed Clinical Quality Measures (CQMs) for 2014 as part of the Medicare and Medicaid Electronic Health Record (EHR) Incentive Programs Stage 2 Notice of Proposed Rule Making (NPRM). The public can review the CQMs and submit feedback online. The proposed CQMs are outlined in two tables that describe each measure and provide additional information for eligible professionals (EPs), eligible hospitals, and critical access hospitals (CAHs) beyond the descriptions listed on the National Quality Forum (NQF) website. Some of these measures are still in development; therefore, the descriptions provided in these tables may change before the final rule is published. Public comments regarding these measures can be submitted until May 7, 2012.
  • HHS Proposed Rule. The Department of Health and Human Services (HHS) released a Proposed Rule implementing section 1104 of the Affordable Care Act (ACA). It proposes the adoption of the standard for a national unique health plan identifier (HPID) and requirements or provisions for the implementation of the HPID and specifies the circumstances under which an organization covered health care provider must require certain noncovered individual health care providers who are prescribers to obtain and disclose an NPI. Additionally, the rule proposes to change the compliance date for ICD-10 diagnosis coding, including the Official ICD–10–CM Guidelines for Coding and Reporting, and the International Classification of Diseases, 10th Revision, and Procedure Coding System (ICD–10–PCS) for inpatient hospital procedure coding from October 1, 2013 to October 1, 2014.

OTHER HEALTH NEWS

  • MACPAC Meeting. The Medicaid and CHIP Payment and Access Commission has scheduled a public meeting on Thursday, April 19. The agenda will be posted on the Commission’s website next week.

Tax

LEGISLATIVE ACTIVITY


  • Senate Scheduled to Vote on High-Profile Buffet Rule.  April 16, the Senate is scheduled to hold a procedural vote on the Paying a Fair Share Act of 2012 (S. 2230), the so-called Buffet Rule measure named after billionaire investor Warren Buffet.  The bill would impose a minimum 30 percent tax on adjusted gross income in excess of $1 million. 
    On April 10, President Obama’s National Economic Council released a report titled “The Buffett Rule: A Basic Principle of Tax Fairness,” arguing that the Buffett Rule should be adopted as a way to bring fairness to the tax code.  That same day, the highest-ranking Republicans on the House and Senate tax-writing committees, Senate Finance Ranking Member Orrin Hatch (R-UT) and House Ways and Means Chairman Dave Camp (R-MI), came out in strong opposition to the proposal, arguing that the politically-charged Buffet Rule will fail to strengthen the economy.
  • House Expected to Vote on Small Business Tax Cut Act.  Next week, the House is expected to vote on the Small Business Tax Cut Act (H.R. 9) unveiled by House Majority Leader Eric Cantor (R-VA) in late March.  The measure would allow all types of small businesses to deduct 20 percent of their active business income. Specifically, businesses with fewer than 500 employees would be permitted to deduct 20 percent of their income from taxes, up to 50 percent of their W-2 wages, regardless whether the companies file as a pass-through or C corporation.
  • Tax Hearings Next Week. The following hearings are scheduled next week in the House Ways and Means and Senate Finance Committees:
    April 17:  House Ways and Means Committee hearing on Tax Reform and Tax-Favored Retirement Accounts
    April 17:  Joint Economic Committee hearing on How the Taxation of Capital Affects Growth and Employment
    April 18:  House Committee on Small Business hearing on The Tax Outlook for Small Businesses: What’s on the Horizon?

TechComm

LEGISLATIVE ACTIVITY


  • Spectrum. The House Science, Space, and Technology Committee’s technology and innovation Subcommittee will hold a hearing on Wednesday, April 18 about avoiding the spectrum crunch. The witnesses include Richard Bennett, Senior Research Fellow at the Information Technology and Innovation Foundation; and Mary Brown, Director, Technology and Spectrum Policy for Cisco Systems, Inc. Other witnesses will be announced at a later time.
  • Video Programming. The Senate Commerce, Science and Transportation Committee is expected to hold a hearing on the future of video programming on April 24, although no further details have been announced.
  • Wireless Tax Moratorium. The tech coalition Mobile Future is urging Senators to move forward on legislation that would place a five-year moratorium on new taxes on wireless services. In an April 12 letter to Senate Finance Committee Chairman Max Baucus (R-MT) and Ranking Member Orrin Hatch (R-UT), Mobile Future urges the Committee to advance the Wireless Tax Fairness Act of 2011. The bill, which was introduced in March 2011 by Senator Ron Wyden (D-OR) and 12 co-sponsors, would ban the imposition of any new taxes on wireless services, and would hold the government's share of the average wireless bill at 14 percent — which is nearly double the average state sales tax.
  • Cybersecurity. The House is poised to call up a suite of bills the week of April 23 in what is now being called “cyber-week.” The core of the effort will be the information sharing bill from Chairman Mike Rogers-(R-MI) and Ranking Member C.A. Dutch Ruppersberger (D-MD) from the House Intelligence Committee, to be combined with a bill from Representative Mike McCaul (R-TX) on cyber education, one on FISMA reform from House Oversight and Government Reform Committee Chairman Darrell Issa (R-CA) and a modified version of the best standards legislation introduced by Representative Dan Lungren (R-CA), chairman of the Cybersecurity Subcommittee of the House Homeland Security Committee. The bills are expected to be combined and sent on to the Senate. Meanwhile, Senate consideration of cybersecurity is taking a back seat to postal reform and other measures and may not be addressed until May.

REGULATORY ACTIVITY

  • Spectrum Act. The Federal Communications Commission (FCC) and the Commerce Department’s National Telecommunications and Information Administration have spent the last two months analyzing and beginning implementing their respective provisions of the Middle Class Tax Relief and Job Creation Act of 2012 (the Spectrum Act).
    On March 26, the FCC established a public docket, PS Docket 12-74, for the Technical Advisory Board for First Responder Interoperability (Interoperability Board). The Interoperability Board has been charged with developing minimum technical requirements for interoperability of the nationwide public safety network that they will submit for recommendation to the First Responder Network Authority (FirstNET), an independent authority that NTIA must appoint by August 20. FirstNet will oversee and manage the public safety broadband network, among other duties.

    Parties that seek to contribute materials for the Interoperability Board to consider in developing its recommendations may submit their materials in this docket. By creating this docket, the Commission provides a vehicle for outside parties to contribute to the Board’s deliberations. The Commission does not intend for the docket to serve as the exclusive mechanism by which members of the Interoperability Board will receive information from outside sources to inform their deliberations.

    The FCC will also host a public workshop on April 23 to collect additional input on topic areas which the Interoperability Board has determined are relevant to the development of minimum technical requirements to ensure a nationwide level of interoperability for the nationwide public safety broadband network. The workshop will consist of four, 45-minute moderated panel discussions. The first panel will focus on the scope (as described below) of the Interoperability Board’s work. The Interoperability Board is interested in receiving comments on the appropriateness of the scope, areas that should be added, deleted or expanded, and why such action should be taken. The second panel will focus on: relevant standards, interfaces and guidelines (e.g. 3GPP, OMA, etc.), including those for network services; requirements relevant to user equipment and device management; requirements relevant to maintaining interoperability as the broadband network evolves; and requirements relevant to conformance, interoperability and performance testing. The third session will focus on interoperability requirements associated with: Grade(s) of Service provided by the broadband network, including data rates, coverage (including between networks or network segments), session persistence and Radio Frequency planning; prioritization and Quality of Service; and mobility and handover. The fourth session will focus on network security. Those interested in presenting during any of the panel discussions should email the Interoperability Board through FCC Public Safety Homeland Security Bureau Deputy Chief Jennifer Manner at jennifer.manner@fcc.gov no later than April 13.

    On the spectrum auction front, the FCC has appointed Ruth Milkman to oversee an FCC task force to manage the incentive auction process. Ruth Milkman, former heard of Wireless who is now special counsel to Chairman Julius Genachowski, will be joined by Rick Kaplan, who now heads Wireless; Julius Knapp, head of the Office of Engineering and Technology; FCC Chief Economist Marius Schwartz; Chief Technologist Henning Schulzrinne and General Counsel Austin Schlick, among others.

    700 MHz Waiver Recipients. In the wake of the Spectrum Act, another issue facing the FCC is how to treat 21 jurisdictions that have existing waivers to deploy public safety networks in the 700 MHz band adjacent to the D Block. The FCC’s Public Safety and Homeland Security Bureau is seeking the most efficient way to transition the authorizations of the waiver recipients to FirstNet. Comments are due Friday, April 20. Among the questions is whether the Public Safety and Homeland Security Bureau should rescind all of the waiver authorizations, even though it noted that two jurisdictions, the state of Texas and Charlotte, N.C., plan to turn their networks on next month and in June, respectively.

    On the NTIA front, recipients of Broadband Technology Opportunities Program (BTOP) grants that were intended to fund the early build out of public safety broadband networks were told to put some of their spending on hold. On April 3, NTIA Administrator Larry Strickling told BTOP recipients that NTIA was imposing a “temporary suspension” on the portion of BTOP grants that would fund “LTE equipment,” such as core servers, radio equipment, antenna and user devices. Strickling also said the suspension would not impact funding for site costs, backhaul acquisition, etc.

    700 MHz Waiver Applications. Meanwhile, the FCC is considering whether to adopt an order that would dismiss more than three dozen pending requests to deploy 700 MHz band public safety broadband networks across the country. FCC officials have notified jurisdictions that have sought waivers that the action is under consideration. Thirty-nine waiver requests are pending at the agency.
  • Tower Siting/Collocations. The FCC Wireless Telecommunications Bureau, along with the National Association of Telecommunications Officers and Advisors (NATOA), will host an educational workshop addressing collocations of wireless and broadband antennas on communications towers and other structures. The workshop will take place on May 1 from 9:30 a.m. to 4 p.m. EDT in the Commission Meeting Room at the FCC’s Washington, D.C., headquarters. The FCC also will webcast the workshop.

    The workshop will provide an overview of how collocations can promote the availability of mobile broadband, public safety, and other wireless services in a manner consistent with community priorities. Panelists will discuss the technical, structural, and business considerations underlying collocations on a variety of structure types, including wireless towers, AM radio/broadcast towers, public safety communications towers, utility infrastructure, rooftops, and water tanks. The workshop will explore examples of cooperative solutions that have facilitated wireless deployment while recognizing community interests. The FCC’s Nationwide Programmatic Agreement for the Collocation of Wireless Antennas also will be discussed.
  • FCC Seeks Input on Definition of MVPD. The FCC’s Media Bureau is seeking comment on the terms “Multichannel Video Programming Distributor” (MVPD) and “channel.” The Public Notice arises out of a pending program access proceeding in which Sky Angel U.S., an online video distributor (OVD), brought a program access claim against Discovery Communications and its affiliate Animal Planet, and petitioned for a “standstill” in order to continue delivery of the Discovery networks under the FCC’s program access rules. The Bureau denied the petition for a standstill on grounds that Sky Angel failed to meet the burden of showing that it is an MVPD entitled to avail itself of the rights and remedies under the FCC’s program access rules. The basis for this decision rests in the FCC’s determination that an MVPD - i.e., to be an eligible claimant under the program access rules - must provide the content and the transmission path (i.e., the “channel”) to the consumer, which Sky Angel does not as it utilizes third-party broadband networks to reach its customers. The Communications Act defines an MVPD as a person, “... who makes available for purchase… multiple channels of video programming.” Under the Commission’s reading of the Communications Act the term "channel" means the transmission path, rather than the more common usage as a programming network. Thus, the Bureau seeks comment on the conclusion that an MVPD includes only those entities that make available both the transmission path and the content. This Public Notice raises a critical issue for OVDs and potential OVDs such Netflix, Roku, Apple and Microsoft. As an MVPD, those entities would have rights to seek content licenses from vertically integrated programmers (e.g., Comcast / NBCU) and to utilize the retransmission consent rules. (MVPDs also have various statutory obligations, such as closed captioning, EEO requirements and others.)  However, if the Commission’s position in Sky Angel prevails, OVDs will be unable to claim rights as an MVPD under the program access rules and lose any ability to compel the licensing of broadcast and cable programming under those rules.

    Comments on the Public Notice are due April 30; reply comments are due May 30.
  • Political Advertising. The U.S. Court of Appeals for the Ninth Circuit struck down a law that bans political ads on public television and radio stations on Thursday, April 12, clearing the way for campaign ads on the public airwaves.

    The decision from the Ninth Circuit overturned part of a law that prohibits public broadcasters from airing ads for political candidates or causes. The ruling comes amid a general-election campaign season that is likely to bring record spending on political ads, and could provide candidates and other groups another venue for reaching voters with paid media spots.
  • In ruling against the ad ban, Circuit Judge Carlos Bea wrote that the law “burdens speech on issues of public importance and political speech.” The judges left intact a portion of the law that prohibits advertising for commercial goods and services. Public radio and television broadcasters have been prohibited from airing advertisements outside of sponsor acknowledgment. The court ruling could clear the way for the airing of “issue ads” that are political but do not identify specific candidates.

Transportation

LEGISLATIVE ACTIVITY

  • SAFETEA-LU Reauthorization. Before the recess, Congress passed a 90-day extension of SAFETEA-LU through June 30 to provide the time needed to complete work on the reauthorization. Prior to the recess, while the House continued working to find 218 votes for its five-year, $260 billion energy and infrastructure bill (H.R. 7), the Senate passed its two-year, $109 billion bill (S. 1813) by a vote of 74-22. Most observers believe there are essentially three alternatives for how the reauthorization bill moves forward from here.
    o Alternative 1: The House is able to pass its five-year bill, H.R. 7, and move into conference with the Senate by late April or early May. This week, however, the House Leadership directed the Transportation and Infrastructure Committee to draft another extension of current law through September 30, 2012, with the apparent intent of using that as a “shell” vehicle to move to conference with the Senate without passing a substantive House bill first -- which the House has heretofore proved unable to do.
    o Alternative 2: Based on recent developments, it appears that the House Leadership will try to advance an approach where the House will use a “shell” bill to get to conference. Under the provisions of the unanimous consent agreement governing consideration of S.1813 (MAP-21) in the Senate, the Senate Majority and Minority Leader have significant latitude to recognize a transportation vehicle from the House as the disagreeing bill to MAP-21, and to use expedited procedures to move to conference. The primary question with this approach is whether it can garner the needed 217 votes in the House, which will come into clearer relief once the Leadership presents it to the Republican Conference after the recess and based on how House Democrats react.
  • Alternative 3: Should neither of these options prove viable, and should Congress not be able to enact a reauthorization bill before the end of the current extension, the most likely scenario at that point would be a straight extension through the election.

    Prior to the recess, both Speaker Boehner and the House Transportation and Infrastructure Committee Leadership had emphasized their commitment to moving H.R. 7 forward. In his weekly press conference before the recess, Speaker Boehner made clear that the House Republican Leadership was continuing to educate its Members on H.R. 7 to build Republican support for the bill, emphasizing in particular the domestic energy provisions in the bill. H.R. 7 includes a range of domestic oil and gas drilling provisions, as well as provisions on the Keystone Pipeline. These energy issues are emerging as a signature election-year issue at a time of broad concern about rising gas prices, and moving H.R. 7 into conference with these provisions represented an opportunity for the House to continue pushing this high-profile political issue on a real legislative vehicle.

    For this reason, it is expected that the House Leadership will propose attaching at least the Keystone Pipeline provision to the shell bill, a very significant step that may well be victory enough for the House Republican Conference. During consideration of MAP-21 in the Senate, an amendment to expedite the Keystone Pipeline received 56 votes, giving House Republican leaders some confidence that the provision – if attached to the House vehicle – could be adopted in conference.

    The question for the House Leadership, and the fundamental question at this point, is whether this approach (unlike the others that have been tried) can garner a majority in the House. This can either be done with near unanimity in the Republican Conference, which has been exceedingly difficult to obtain to this point, or with significant Democratic support. For the Republican Conference, the upside is a legitimate chance at seeing the Keystone Pipeline provision enacted and simply having a way forward on what has proved to be a difficult and divisive issue for them. The downside is that the Republicans will have little leverage in conference negotiations, not having produced their own bill, and will have to vote up-or-down on an un-amendable conference report that will be substantially similar to the Senate bill. For Democrats who support this Senate bill, this is the significant upside – but the challenge there is having to vote to expedite the Keystone Pipeline. The fate of this approach depends on whether this can be triangulated to result in the needed 217 votes in the House.