June 21, 2012


GR ICANN Reveals Applications for New Domains

The Internet Corporation for Names and Numbers (ICANN) has revealed the full list ofapplications for new top level domains.  Applications were submitted for nearly 2,000 new domains.  If and when they go live, new domains could for the first time feature non-Latin characters such as those in Chinese or Cyrillic.
ICANN plans to evaluate each application on both a technical and legal basis before it is approved.  It is unknown how many of the new applications are likely to be approved or when they would go live, although most observers do not expect them before late in 2013.  In those cases where multiple applicants submitted the same name and cannot reach an agreement on control, ICANN will conduct an auction.

While ICANN maintains that expansion of the Internet’s domain system will lead to more choices and drive innovation, many in the business and law enforcement communities remain concerned that the addition of many new domains will lead to consumer confusion and new opportunities for consumer fraud.

In addition to these issues, many advertisers and brand owners are wary of the potential need to defensively register hundreds of new domains.  AAF and allied groups will continue to try to work with ICANN institute safeguards to protect both consumers and businesses.

Appropriators Attempt to Direct FTC and FCC on Privacy

The FY 2013 Financial Services appropriations bill passed by the Senate Appropriations Financial Services Subcommittee last week included language directing the Federal Trade Commission and Federal Communications Commission to “issue guidance to consumers on best practices for protecting personal information transmitted over wireless networks . . . . to study the privacy policies governing the collection and use of personal information online by major communications companies;” and to “issue guidance on best practices for disclosing the terms and conditions of these policies.” 

AAF and many industry allies have written a letter to members of the full Appropriations Committee urging them to delete the subcommittee language from the bill. Consumer privacy is a complex issue which should be fully deliberated by the committees of jurisdiction, which have in fact held multiple hearings. It is inappropriate and unwise for a matter such as this to be legislated through a funding bill. We are pleased that committee leaders on both sides of the aisle have made encouraging statements recognizing our concerns.
While the language currently remains in the legislation, a number of controversial issues unrelated to privacy or advertising could help prevent the measure from being enacted into law.

House Committee Rejects Attempt to Refund Working Group

During the House Appropriations Committee’s markup of the FY 2013 Financial Services Appropriations bill Representative Rosa DeLauro, D-Conn., offered an amendment to strike the "do not fund" language for the Interagency Working Group report on nutrition standards for foods marketed to children until the IWG complied with the executive order requiring a cost benefit analysis for new federal regulations.  If passed, the amendment could have freed the Federal Trade Commission to resume pursuing advertising restrictions.  The DeLauro amendment was defeated by voice vote.

Senate Committee Votes to Limit College Advertising

The Senate Appropriations Committee has approved bill and report language for the FY 2013 appropriations bill that would prohibit colleges or universities that receive Higher Education Act funding from spending Federal educational program dollars on marketing, recruitment, and advertising. The bill also directs the Secretary of Health and Human Services to produce information regarding HHS contracts to acquire public relations, publicity, advertising, communications and other services.

The language reflects the concern of some Senators that some for profit colleges are not delivering on promises and leave many students, especially former members of the armed services, with extreme amounts of debt and no degree to show for it.  AAF will be sending a letter to Senators opposing the proposal as an unconstitutional restriction of commercial speech, and suggesting that there may be ways to address what may be legitimate concerns without violating the First Amendment.

Supreme Court Strikes Down Indecency Fines

The U.S. Supreme Court has ruled in an 8-0 decision that broadcasters ABC and Fox are not liable for fines incurred under the Federal Communication Commission’s policy of policing “fleeting expletives” and nudity on broadcast television. 
The court decided the case on Fifth Amendment due process grounds, ruling that the broadcasters were not adequately notified that their broadcasts would expose them to fines. It vacated an appeals court decision, based on the First Amendment, ruling that the FCC’s authority over such broadcasts is “arbitrary and capricious.” That means that the standards for regulating broadcast content as articulated in FCC vs. Pacifica – the famous case involving George Carlin’s monologue about dirty words – are still the law of the land.

The case was remanded to the Second Circuit Court of Appeals for any further action. The ruling also stated that the FCC was free to alter its policy on broadcast indecency as it saw fit.

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