A three-judge D.C. Circuit U.S. Court of Appeals panel scheduled oral argument Oct. 2 on the Open Technology Fund’s lawsuit against U.S. Agency for Global Media CEO Michael Pack. The D.C. Circuit in July temporarily stayed Pack’s bid to purge grantee OTF’s leadership, which got scrutiny from congressional Democrats (see 2006240054). Merrick Garland, Cornelia Pillard and David Sentelle will hear the case at 9:30 a.m., the court said (in Pacer). Meanwhile, the House Foreign Affairs Committee continues to push for Pack to testify at a planned Thursday hearing. Pack earlier committed to appear before House Foreign Affairs that day but pulled out without providing “any reasonable alternative dates,” forcing the committee to issue a subpoena. Pack is expected to defy the subpoena, a House Foreign Affairs aide said. The move has drawn the ire of Chairman Eliot Engel, D-N.Y., and ranking member Michael McCaul, R-Texas.
Jimm Phillips
Jimm Phillips, Associate Editor, covers telecommunications policymaking in Congress for Communications Daily. He joined Warren Communications News in 2012 after stints at the Washington Post and the American Independent News Network. Phillips is a Maryland native who graduated from American University. You can follow him on Twitter: @JLPhillipsDC
Congress "should consider legislation to designate a leadership position in the White House with commensurate authority to implement and encourage action in support of the nation's cybersecurity," GAO reported Tuesday. The House-passed FY 2021 National Defense Authorization Act (HR-6395) includes language to establish a national cyber director within the executive office of the president (see 2007200067). The U.S. Cyberspace Solarium Commission also recommended that (see 2003110076). “In light of the elimination of the White House Cybersecurity Coordinator position” (see 1708030009), “it remains unclear which official ultimately maintains responsibility for not only coordinating execution” of President Donald Trump’s 2018 U.S. cyber strategy (see 1809200055) “but also holding federal agencies accountable once activities are implemented,” GAO said. “Without a clear central leader to coordinate activities, as well as a process for monitoring performance," the White House “cannot ensure that entities are effectively executing their assigned activities intended to support the nation’s cybersecurity strategy and ultimately overcome this urgent challenge.” GAO urged the National Security Council to "work with relevant federal entities to update cybersecurity strategy documents to include goals, performance measures, and resource information." NSC “neither agreed nor disagreed with GAO's recommendation,” the office said. GAO separately urged the State Department to “involve federal agencies that contribute to cyber diplomacy to obtain their views and identify any risks, such as unnecessary fragmentation, overlap, and duplication of these efforts, as it implements its plan to establish” a Cyberspace Security and Emerging Technologies (CSET) Bureau. It's "important for agencies to involve other agency stakeholders in developing proposed reforms to obtain their views,” the office said. “Without involving and communicating with agency partners on its reorganization plan, State lacks assurance that it will effectively achieve its goals for establishing CSET, and it increases the risk of negative effects from unnecessary fragmentation, overlap, and duplication of cyber diplomacy efforts.” State disagreed, saying "other agencies are not stakeholders in an internal State reform, and that it was [unaware] that these agencies had consulted with State before reorganizing their own cyberspace security organizations,” the auditor said.
Debate about infrastructure legislation and including broadband funding in the next compromise COVID-19 aid bill is unlikely to factor into the election campaign, despite hopes to the contrary (see 2008210001), said political analyst Charlie Cook during a Media Institute event Monday. “I don’t think many people vote on issues,” though an individual voter’s view on them are “baked into” their partisan leanings. The tenor of U.S. politics has “revolved around” voters’ views of President Donald Trump since he took office, and “nothing has diminished” that: “Do I think infrastructure is going to be a big, big deal next year? Hell, yes,” Cook said. “To the extent that people didn’t get the importance of building broadband” networks pre-pandemic, “they get it now.” Cook believes Trump’s chances aren’t zero, but he likely has only a 20% chance of getting enough electoral votes. Cook said Democratic presidential nominee Joe Biden stands a 40% chance of winning a narrow victory over Trump and an equal chance of scoring a landslide. He said Democrats have more than a 50% chance of gaining a majority in the Senate and are very likely to retain House control.
House Appropriations Committee Chairwoman Nita Lowey, D-N.Y., bowed a continuing resolution Monday (HR-8319) to fund the FCC, FTC and other federal agencies through Dec. 11 to avoid government shutdown. Congress must pass a CR or FY 2021 appropriations measures before Oct. 1. A House vote on HR-8319 is expected later this week. “While the House did its job and passed bills funding nearly every government agency, Senate Republicans did not even begin the appropriations process," Lowey said in a statement. "Because of their irresponsibility, a continuing resolution is sadly necessary." The measure appears to have support of Treasury Secretary Steven Mnuchin and bipartisan congressional leadership, lobbyists said. A House-passed omnibus FY 2021 bill (HR-7617) would allocate $376 million for the FCC, $341 million for the FTC, $45.5 million for NTIA, $3.7 billion for the Patent and Trademark Office and $1.04 billion for the National Institute of Standards and Technology. It includes $515 million for CPB, almost $180.3 million for DOJ’s Antitrust Division and $2.25 billion for the Department of Homeland Security's Cybersecurity and Infrastructure Security Agency (see 2007310053).
Senate Commerce Committee Chairman Roger Wicker, R-Miss., led filing Thursday of the Setting an American Framework to Ensure Data Access, Transparency, and Accountability. The Safe Data Act got mixed response the following day. The committee’s privacy legislation talks have been largely at a standstill (see 2003040052). The act would require businesses to increase transparency in consumer data collection practices and let courts grant injunctive relief. It includes many elements of a draft bill Senate Commerce Republicans circulated in November (see 1912030060), including enumerating consumer data rights; language requiring businesses let consumers access, alter and port their data; and a ban on businesses transferring consumers’ data without their consent. Communications Subcommittee Chairman John Thune, R-S.D., and Sens. Marsha Blackburn, R-Tenn., and Deb Fischer, R-Neb., are lead co-sponsors. “While it is encouraging to see the presence of important consumer privacy rights in Sen. Wicker’s bill, it falls well short of providing comprehensive protections of individual privacy rights that are needed,” said Public Knowledge Policy Counsel Sara Collins. It would require "transparency instead of mandating accountability," she said. "Consumers need and deserve better than a federal ‘ceiling’ of lax privacy protections.” It's the result of "work toward ensuring that a federal privacy law gives consumers rights in their personal data and places obligations on businesses to handle that data,” said BSA|The Software Alliance Vice President-Legislative Strategy Craig Albright. Information Technology Industry Council CEO Jason Oxman lauded “meaningful privacy protections, well-defined company responsibilities and consumer rights” and “balanced language addressing both privacy and security, and strong preemption” in the bill. House Commerce Committee Republicans praised Wednesday's coming Senate Commerce privacy hearing (see 2009160075), urging the lower chamber complete work on its own proposal.
House Communications Subcommittee members in both parties delivered Thursday on expectations for a highly partisan FCC oversight hearing (see 2009160076) in which many lawmakers gave what they viewed as their final verdict on the commission’s performance under Chairman Ajit Pai. Democrats castigated what they saw as the FCC's missed opportunities on telecom policy, including not doing more to improve connectivity amid COVID-19. Republicans defended Pai as doing as much as he could under statutory authority. The House Commerce Committee’s own policy track record during this Congress came into question amid renewed pressure for a compromise on aid legislation.
The Senate Commerce Committee cleared the Government Spectrum Valuation Act (S-1626 and see 1905230028) and E-Sign Modernization Act (S-4159) Wednesday, after Democrats voiced reservations. The committee jettisoned plans to mark up the Rural Connectivity Advancement Program Act (S-4015 and see 2009150070), along with the Ensuring Network Security Act (S-4472). Maria Cantwell, Wash., and several other Democrats asked to be recorded as opposing S-1626, as did Deb Fischer, R-Neb. Commerce cleared the bill on a voice vote. FCC Commissioner Mike O’Rielly tweeted his praise for S-1626, saying “this needed bill will help spur spectrum efficiency in Federal agencies!” NCTA hailed the bill before the markup. CTIA also praised it. S-1626 “has one goal: to put pressure on federal agencies such as [the Department of Transportation], NOAA, NASA, and DOD to give up spectrum,” Cantwell said. “It is designed to create a wildly inaccurate evaluation of spectrum use, and I hope that we don't ignore how essential federal spectrum is, but come to working together to resolve these issues between agencies.” Commerce advanced S-4159 on a 14-12 party-line vote. The modified measure would update the 2000 Electronic Signatures in Global and National Commerce Act to remove a requirement consumers must reasonably demonstrate they can access documents electronically before they can receive an electronic version. “While I think this is an area worth further study, I think it's very important to protect low income consumers who may be on the wrong side of the digital divide and unable to easily access electronic records,” Cantwell said. Senate Commerce decided not to seek a vote on S-4472 because senators wanted additional time to review the measure, a committee aide said. S-4472 and House companion HR-8000 would make U.S. providers that have up to 10 million customers eligible for funding to help remove Chinese equipment determined to threaten national security (see 2008120030).
It’s unlikely the Senate will significantly move forward in consideration of FCC nominee Nathan Simington before the November election, if at all this year, lawmakers and lobbyists said in interviews this week. The White House said Tuesday President Donald Trump intended to nominate Simington, currently a NTIA senior adviser, to the seat held by Commissioner Mike O’Rielly (see 2009150074). The White House formally sent Simington's nomination to the Senate Wednesday. Trump revoked O’Rielly’s renomination in early August (see 2008030072).
A Thursday House Communications Subcommittee hearing is expected to feature partisan dueling assessments of the FCC's performance under Chairman Ajit Pai, capping off subcommittee Democrats’ often-rancorous relationship with commission Republicans this Congress (see 1901160031). Communications Democrats said the hearing will focus on FCC “lost opportunities” during President Donald Trump’s administration, including actions they say widened the digital divide (see 2009100066). The hearing begins at 10 a.m.
The FCC and Universal Service Administrative Co. should “comprehensively assess fraud risks to the E-rate program and follow leading practices when designing and implementing data analytics to prevent and detect fraud,” GAO said in a report sought by Senate Budget Committee Chairman Mike Enzi, R-Wyo. The FCC Office of Inspector General reported to Congress in 2017 that the commission’s ability to detect and deter E-rate fraud was limited because of lack of oversight controls. GAO said Wednesday it found E-rate’s program design allows participants to “self-certify” and lacks sufficient FCC oversight to “identify potential fraud risks. For example, an applicant could receive payments for services they've claimed to have provided, but don't have the documentation.” Reliance on self-certification “is an inherent overarching key fraud risk affecting the E-rate program application and funding phases,” the auditor said. “This key fraud risk presents opportunities for applicants, service providers, or consultants to misrepresent dozens of self-certification statements on various application and funding FCC forms.” Other key fraud risks include “opportunities to misrepresent compliance with competitive-bidding requirements,” instances where “various E-rate program participants” can “collude” and potential conflicts of interest “when an E-rate consultant or Educational Service Agency represents both the applicant and service provider in the same transaction.” The proposed coordinated FCC-USAC assessments of E-rate fraud risks should include “implementing their respective plans for developing periodic fraud risk assessments, examining suitability of existing fraud controls, and compiling fraud risk profiles, GAO recommended. The FCC chairman should ensure the commission and USAC “follow the leading practices in GAO’s Fraud Risk Framework when designing and implementing data-analytics activities to prevent and detect fraud as part of their respective antifraud strategies for the E-rate program.” The FCC should direct USAC “to clearly define and fully document the data fields in all relevant E-rate program computer systems to help improve FCC’s ability to understand and use data to manage fraud risks,” GAO said. The FCC agreed about the recommendations. Coordination with USAC on E-rate assessments “complements” the regulator’s “existing efforts and will help the Commission and USAC to build on those efforts to mitigate fraud risk,” said FCC Managing Director Mark Stephens and Wireline Bureau Chief Kris Monteith in an attached letter. The FCC and USAC “have been working collaboratively to incorporate the use of data-analytics activities into our fraud risk management plans and starting last year, began using data analytics in the context of investigation and enforcement.” The FCC plans to “direct USAC to better document and define the data fields in its E-Rate systems, with an initial focus on the key data fields that USAC relies on most to administer” the program, Monteith and Stephens said. USAC declined to comment.