Friday, October 14, 2011

SECTION 285. BOARD OF DIRECTORS OF THE CORPORATION

“Public Safety Broadband Corporation”


This public non-profit corporation is different than that of the infrastructure bank.  This is based in the understanding the public as a right to safety provided by broadband spectrum, so therefore the most informed members on issues of public safety are to be a part of this "Board."



(a) Membership.—The management of the Corporation shall be vested in a Board of Directors (referred to in this Title as the “Board”), which shall consist of the following members:

(1) FEDERAL MEMBERS.—The following individuals, or their respective designees, shall serve as Federal members:

(A) The Secretary of Commerce.
(B) The Secretary of Homeland Security.
(C) The Attorney General of the United States.
(D) The Director of the Office of Management and Budget.

These members are directly involved with the Executive Branch, except, for the Director of OMB.  The OMB is a function of the federal government, but, not completely and exclusively a member of the President's cabinet as are the other three.



(2) NON-FEDERAL MEMBERS.—


(A) IN GENERAL.—The Secretary of Commerce, in consultation with the Secretary of Homeland Security and the Attorney General of the United States, shall appoint 11 individuals to serve as non-Federal members of the Board.



The assignment of Non-Federal members is even more interesting.  While they are autonomous of the direct influence of the federal government, they are chosen on recommendation by oddly enough the Secretary of Commerce, the AG and the Secretary of Homeland Security.  While that may seem like a conflict of interest, it is not.  There are to be 11 of the Non-Federal members which out votes the federal component and they will be QUALIFIED to be a member of the Board.  Having nominating power of QUALIFIED members is not a conflict of interest, it is an 'assurance / insurance' to the ability of the Non-Federal members to function well in this area.  The distribution of authority will be interesting as well when it comes to the role of these members and whether or not there are 'perscriptives' to their role.  In other words, are they 'at will' members or constrained by certain definitions of their voting capacity.  Only when discussing limited and unequal capacity does it then appear to be disqualifying to the nomination process.



(B) STATE, TERRITORIAL, TRIBAL AND LOCAL GOVERNMENT INTERESTS.—In making appointments under subparagraph (A), the Secretary of Commerce should—


(i) appoint at least 3 individuals with significant expertise in the collective interests of State, Territorial, Tribal and Local governments; and


(ii) seek to ensure geographic and regional representation of the United States in such appointments;


(iii) seek to ensure rural and urban representation in such appointments.

Those three requirements of the Secretary of Commerce, (i), (ii) and (iii) are very wide ranging and designed to bring DIVERSITY to the choices.  I sincerely doubt ALL those capacities of those subsections will be filed by a MINIMUM  of three persons.  There are going to be many more than 3 to satisfy those requirements.  Not that, with effort, it could be kept to three, but, the likelihood that is realistic is silly and misconstrued to the ability to diversity the Board.

(I) PUBLIC SAFETY EXPERIENCE.—
(II) TECHNICAL EXPERTISE.—
(III) NETWORK EXPERTISE.—
(IV) FINANCIAL EXPERTISE.—



(ii) EXPERTISE TO BE REPRESENTED.—In making appointments under subparagraph (A), the Secretary of Commerce should appoint—


(I) at least one individual who satisfies the requirement under subclause (II) of clause (i);


(II) at least one individual who satisfies the requirement under subclause (III) of clause (i); and


(III) at least one individual who satisfies the requirement under subclause (IV) of clause (i).


The qualification above require diversity of interests in a way that would assure qualification.  All the requirements of the Board when determining policy and decision making capacity have to have a Board that will 'enable' efficient understanding of the broadband spectrum, its capacity, it important to safe and sovereign USA and how best to facilitate its use other than that of national interest.  This is no minor Board.


The qualifications are for as much experience across the board in Federal, State, Local and Tribal public safety and emergency response as well as boardband communications, public safety communications, cybersecurity, funding and financing and deploying networks and any combination of those.  There will be interesting investigation of this issue along the way and probably significant public policy as well.  The Secretary of Commerce has the FCC under its jurisdiction.  


This Board is not starting from the beginning.  Much of the work is already in progress under the Recovery Act, which is all the more reason for the USA CONGRESS to move aggressively forward with this bill.


Program-Specific Recovery Act Plan for the FCC’s Efforts on the Broadband Technology Opportunities Program (click here)


Program Purpose 


As directed in the American Recovery and Reinvestment Act of 2009 (ARRA or Recovery Act) (P.L. 111-5), the Federal Communications Commission (FCC or Commission) will develop a national broadband plan and consult with the National Telecommunications and Information Administration (NTIA) of the Department of Commerce in their implementation of the Broadband Technology Opportunities Program (BTOP).  The Secretary of Commerce, in consultation with the FCC and following Congressional notification, may transfer amounts to the FCC for carrying out these responsibilities....

This is the autonomy I was hoping for and expecting actually from this President in regard to keeping any conflict of interest out of the nomination process.  Regardless, of the nomination the candidate is completely autonomous in their role and their will of their vote.  The QUALIFICATIONS of the candidate is of most importance NOT their ability to be constrained within those qualifications.  In other words, the Non-Federal members are not simply a tour guide to the Board, they have an active interest in all the decision making and can impact those decisions without constraints.  This careful method of 'building' a successful law is a hallmark of President Obama.  He is expertly efficient in upholding the highest form of democracy when his work can be viewed as an exclusive work of his own.  He is magnificent.  He loves democracy and there can be absolutely no doubt about it.  

(E) INDEPENDENCE.—


(i) IN GENERAL.—Each non-Federal member of the Board shall be independent and neutral and maintain a fiduciary relationship with the Corporation in performing his or her duties.

As there is no conflict of interest in his 'content' of the Board there can be no conflict of interest inherent to the Board member either.


(I) may not, other than in his or her capacity as a member of the Board or any committee thereof—


(aa) accept any consulting, advisory, or other compensatory fee from the Corporation; or


(bb) be a person associated with the Corporation or with any affiliated company thereof; and


(II) shall be disqualified from any deliberation involving any transaction of the Corporation in which the Board member has a financial interest in the outcome of the transaction.

The Non-Federal members are not employees or officers of the Federal government, must be USA citizens and have security clearance by the Director of National Security for Top Secret, Special Compartmented Information.


(1) INITIAL APPOINTMENT DEADLINE.—Members of the Board shall be appointed not later than 180 days after the date of the enactment of this subtitle.


The Federal Members serve for the length of their term in the Executive Branch or the Director or OMB.


(ii) NON-FEDERAL MEMBERS.—The term of office of each non-Federal member of the Board shall be 3 years. No non-Federal member of the Board may serve more than 2 consecutive full 3-year terms.


Usual methodology for terms.  This same method was used for the bank.  The difference in more members over three year period.



(D) STAGGERED TERMS.—With respect to the initial non-Federal members of the Board—


(i) 4 members shall serve for a term of 3 years;


(ii) 4 members shall serve for a term of 2 years; and


(iii) 3 members shall serve for a term of 1 year.


(c) Chair.—


(1) SELECTION.—The Secretary of Commerce, in consultation with the Secretary of Homeland Security and the Attorney General of the United States, shall select, from among the members of the Board, an individual to serve for a 2-year term as Chair of the Board.


(2) CONSECUTIVE TERMS.—An individual may not serve for more than 2 consecutive terms as Chair of the Board.


(3) REMOVAL FOR CAUSE.—The Secretary of Commerce, in consultation with the Secretary of Homeland Security and the Attorney General of the United States, may remove the Chair of the Board and any non-Federal member for good cause.

Chair is removed by majority vote which indicates a process probably presented by the AG to the facts for the dismissal for the Board's consideration.



(1) FREQUENCY.—The Board shall meet in accordance with the bylaws of the Corporation—


(A) at the call of the Chairperson; and


(B) not less frequently than once each quarter.


(2) TRANSPARENCY.—Meetings of the Board, including any committee of the Board, shall be open to the public. The Board may, by majority vote, close any such meeting only for the time necessary to preserve the confidentiality of commercial or financial information that is privileged or confidential, to discuss personnel matters, to discuss security vulnerabilities when making those vulnerabilities public would increase risk to the network or otherwise materially threaten network operations, or to discuss legal matters affecting the Corporation, including pending or potential litigation.

It would appear, if not stated in the bill, the first function of the Board is to draw up By-Laws.

(i) Prohibition on Compensation. Members of the Board of the Corporation shall serve without pay, and shall not otherwise benefit, directly or indirectly, as a result of their service to the Corporation, but shall be allowed a per diem allowance for travel expenses,...


These Board members will be employed elsewhere and in some capacity that is responsible to there qualifications.  The Federal members already receive compensation for their offices.  It is possible some non-federal member might be retired or otherwise outside the venue of employment when they serve.



(a) Officers and Employees.—


(1) IN GENERAL.—The Corporation shall have a Chief Executive Officer, and such other officers and employees as may be named and appointed by the Board for terms and at rates of compensation fixed by the Board pursuant to this subsection. The Chief Executive Officer may name and appoint such employees as are necessary. All officers and employees shall serve at the pleasure of the Board.


(2) LIMITATION.—No individual other than a citizen of the United States may be an officer of the Corporation.


(3) NONPOLITICAL NATURE OF APPOINTMENT.—No political test or qualification shall be used in selecting, appointing, promoting, or taking other personnel actions with respect to officers, agents, or employees of the Corporation.

No conflict of interest is everywhere.  Boardband is a highly valuable product that will benefit the Treasury of the American people directly.  The Board or its hired help cannot be tainted to that purpose.


(C) LIMITATION ON OTHER COMPENSATION.—No officer or employee of the Corporation may receive any salary or other compensation (except for compensation for services on boards of directors of other organizations that do not receive funds from the Corporation, on committees of such boards, and in similar activities for such organizations) from any sources other than the Corporation for services rendered during the period of the employment of the officer or employee by the Corporation, unless unanimously approved by all voting members of the Corporation.


(5) SERVICE ON OTHER BOARDS.—Service by any officer on boards of directors of other organizations, on committees of such boards, and in similar activities for such organizations shall be subject to annual advance approval by the Board and subject to the provisions of the Corporation’s Statement of Ethical Conduct.


The same security demands for USA Government clearance apply to officers as well as Board members.



(b) Advisory Committees.—The Board—


(1) shall establish a standing public safety advisory committee to assist the Board in carrying out its duties and responsibilities under this Title; and


(2) may establish additional standing or ad hoc committees, panels, or councils as the Board determines are necessary.


Similar to the advisory committees to the FDA, the Board will have the option of opening up topics to the industry and the public and advocacy groups through these committees.  Here again this is democracy at work.  Advisory committees are just that and do not have decision making or voting rights.  These committees provide a board base of opinions as well as fact finding that 'could' assist in decision making.  Here through the members and officers of the Board have security clearance that will also provide information for decision making.  So, while the advisory committee(s) may provide expertise the public may favor, that does not mean the final decision of the Board is incorrect or tainted by personal preference.  There are many voting members so any faux decision will be marginalized to the minority.  It just is that simple.  



SECTION 287. NONPROFIT AND NONPOLITICAL NATURE OF THE CORPORATION.


(a) Stock.—The Corporation shall have no power to issue any shares of stock, or to declare or pay any dividends.


(b) Profit.—No part of the income or assets of the Corporation shall inure to the benefit of any director, officer, employee, or any other individual associated with the Corporation, except as salary or reasonable compensation for services.


(c) Politics.—The Corporation may not contribute to or otherwise support any political party or candidate for elective public office.


(d) Prohibition on Lobbying Activities.— The Corporation shall not engage in lobbying activities (as defined in section 3(7) of the Lobbying Disclosure Act of 1995 (5 U.S.C. 1602(7))).


Below is a readable document that is not the law, but, a reflection of it.


Lobbying Regulations on Non-Profit Organizations (click here)
Updated May 7, 2008
Jack H. Maskell
Legislative Attorney
American Law Division


Lobbying Disclosure Act (click here)


PUBLIC LAW 104-65-DEC. 19,1995 109 STAT. 691
Public Law 104-65 104th Congress
109 STAT. 691
An Act
To provide for the disclosure of lobbying activities to influence the Federal Government, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,


SEC. 3. DEFINITIONS.

As used in this Act:


(7) LOBBYING ACTIVITIES.-The term "lobbying activities" means lobbying contacts and efforts in support of such contacts, including preparation and planning activities, research and other background work that is intended, at the time it is performed, for use in contacts, and coordination with the lobbying activities of others.


I have checked several different places online and cannot locate 1602 of Title 5.  It is probably new and online sources are not updated yet.



TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES (click here)



The next section is quite lengthy and I'll begin that tomorrow morning.  It would not give it justice to yawn through it.

SECTION 288. POWERS, DUTIES, AND RESPONSIBILITIES OF THE CORPORATION.