7/29. AT&T, Verizon, CenturyLink, FairPoint, Frontier, and Windstream submitted to the Federal Communications Commission (FCC) a collection of documents titled "America's Broadband Connectivity Plan". It contains proposals of incumbent local exchange carriers (ILECs) for reforming the FCC's Universal Service Fund (USF) and intercarrier compensation regime. See:

• cover letter [2 pages in PDF]
• summary letter [5 pages in PDF]
• attachment 1 titled "Framework of the Proposal" [14 pages in PDF]
• attachment 2 titled "Summary of Model Results" [4 pages in PDF]
• attachment 3 titled "Model Description" [28 pages in PDF]
• attachment 4 titled "Professor Hausman Consumer Benefits Paper" [34 pages in PDF]
• attachment 5 titled "Legal Authority White Paper" [69 pages in PDF]

The summary letter asserts that this plan would "directly enable efficient deployment, operation, and enhancement of broadband networks in high-cost areas".

The "Framework of the Proposal" summarizes the plan.

It proposes to create two new programs, a "Connect America Fund" (CAF) and an "Advanced Mobility/Satellite Fund" (AMSF), to subsidize broadband service in high cost areas. This CAF would be limited to "CAF to areas currently served by price cap incumbent LECs", and would be "available only in those high-cost areas in which there is no private sector business case to offer broadband".

In addition, this "plan begins to phase out the support that incumbent price cap LEC Eligible Telecommunications Carriers (ETCs) and competitive ETCs (CETCs) receive from the legacy universal service programs on July 1, 2012, once the CAF begins to disburse broadband funding. The plan eliminates those ETCs’ support from the legacy universal service programs entirely by July 1, 2016, when the CAF is fully funded."

Existing high cost subsidy programs -- Interstate Access Support (IAS), Interstate Common Line Support (ICLS), High Cost Model (HCM), High Cost Loop (HCL), and Local Switching Support (LSS) -- would be phased out by 2016. Also, "If an existing ETC does not participate in the CAF, it may continue to receive legacy support", through 2016.

This framework also states that "the combination of (i) the universal service mechanisms covered by this plan1 and (ii) the universal service mechanisms proposed by the rate-of-return carrier associations is designed to operate within the current size of the high-cost program".

The CAF would provide "$2.2 billion per year to support the provision of broadband service to residential and business service locations in high-cost areas served by price cap incumbent LECs."

"Broadband providers that elect to receive support from the CAF will receive a fixed level of support for a term of ten years from the date on which support is awarded", and "must make available broadband service that provides customers with a minimum actual downstream bandwidth of 4 Mb/s and a minimum actual upstream bandwidth of 768 kb/s, and also provides robust service that is sufficient for households to use education and health care applications specified by the" FCC.

This framework also provides a model to be applied by the FCC in determining what is a high cost area, and then "to calculate a baseline support amount for the supported area".

This framework also provides two sets of procedures for applying to the FCC for CAF subsidies. One applies if the ILEC has already made "substantial broadband investments" there. If not, and there are two or more applicants, then the FCC will proceed with "competitive bidding".

The framework also lists obligations imposed on recipients of CAF subsidies, including buildout and providing service in a minimum number of locations. Those "consumers in locations that the CAF recipient is not required to serve would be able to purchase broadband service directly from a broadband satellite provider", which in turn may receive subsidies under the Advanced Mobility/Satellite Fund program.

The framework of the proposal then addresses intercarrier compensation. It states that "regulated terminating intercarrier compensation rates of all carriers except rate-of-return incumbent LECs are phased down to a uniform default rate of $0.0007 per minute by July 1, 2017".

With respect to intercarrier compensation treatment of VOIP traffic, the framework states that the FCC "will adopt a new rule, effective January 1, 2012, to govern the intercarrier compensation rates applicable to VoIP traffic exchanged between LECs and other carriers. Such traffic will be rated at interstate access rates if the call detail indicates an ``access´´ call, or at reciprocal compensation rates if the call detail indicates a ``non-access´´ call. All ``toll´´ traffic that originates in IP or terminates in IP will be subject to current interstate access rates (regardless of whether it is interstate or intrastate); local termination rates would not be affected. All such traffic is incorporated into the overall transition as rates for terminating interstate access traffic are reduced and eventually unified at $0.0007 pursuant to the comprehensive reform plan described below. Under the plan, intrastate access rates will not be applied to VoIP traffic." (Parentheses in original.)

The framework also calls for lessening "restrictions on incumbent LECs' federal subscriber line charge (SLC) rates", and elaborates on two ways that ILECs could increase SLCs.

It also states that the FCC "must conclude that VoIP services are interstate services, and reaffirm that broadband services are interstate services. The Commission must also preempt any state regulation of those services that is inconsistent with the federal policy of nonregulation."

Walter McCormick, head of the US Telecom, stated in a letter to the FCC that "The United States Telecom Association Board of Directors, comprised of executives representing every facet of the local exchange industry -- companies large and small, urban and rural, operating both as price cap and rate of return carriers -- offers its endorsement of the America's Broadband Connectivity Plan as providing a positive forward-looking framework from which all participants in the broadband ecosystem can work together towards our common goals of achieving expanded broadband deployment, increased broadband investment, and greater stability and predictability in the financial fundamentals of the telecommunications industry."

He continued that "Collectively, USTelecom member companies serve most of rural America – reaching approximately 85% of all Americans living in rural areas. Universal service and intercarrier compensation reform in the very near term are critical to our nation’s broadband future, particularly in sparsely populated regions. In making this endorsement, the USTelecom Board took note of the fact that this plan has been crafted with the input of both price cap and rate-of-return carriers serving rural America, and that it has benefited from consultation with the broader industry – including cable companies, wireless companies, competitive local exchange carriers, voice-over-internet providers, and their associations." See also, US Telecom release.

7/29. Numerous persons and entities responded to the release by AT&T, Verizon and other phone companies of their proposal for  reforming the Federal Communications Commission's (FCC) Universal Service Fund (USF) and intercarrier compensation regrime.

Rep. Greg Walden (R-OR) and Rep. Lee Terry (R-NE) stated in a release that "We are encouraged by the growing consensus among stakeholders as developed" by this plan, and "we hope that consensus will continue to grow". They added that "The stakes are high in rural districts across America where access to affordable phone and broadband service is essential for economic growth, job creation and the quality of rural healthcare and education."

Sen. John Rockefeller (D-WV), the Chairman of the Senate Commerce Committee (SCC), stated in a release that "Universal service is a cherished principle. In years past, it has meant that this nation connects every community with basic phone service. But in the years ahead, it must mean that we connect our communities with advanced broadband and wireless service, too."

Sen. Kay Hutchison (R-TX), the ranking Republican on the SCC, stated in a release that the USF and the intercarrier compensation regime "are both in serious need of reform, but such reform must be done in a thoughtful manner that does not cause excessive disruption to the market." She continued that "I am pleased to see such a diverse group of small and large telecommunications providers working together to find consensus".

The National Association of Regulatory Utility Commissioners (NARUC) stated in a release that "Although we applaud the industry for its efforts, albeit through closed-door discussions, it is the FCC's job is to assure that all interests, most importantly consumers, are well served by any effort to reform Universal Service and Intercarrier Compensation." It added that "Legal sustainability should be a hallmark of any plan".

Cathy Sloan of the Computer and Communications Industry Association (CCIA) stated in a release that "Big telecoms are asking the FCC to levy new charges on VOIP applications and traffic that vastly exceed the costs associated with them. It would be unwise for the FCC to reach beyond its authority over wired and wireless telecommunications and tax the most innovative layer of the Internet ecosystem. Furthermore, the USTelecom proposal fails to explain how broadband build-out to high cost areas would be funded."

The National Cable and Telecommunications Association (NCTA) stated in a release that "While we recognize some positive elements in the proposed framework, we have important questions regarding how these principles would be fairly applied during the transition period. We believe these issues deserve to be aired and considered, but more than anything, we hope that our collective interest in change will serve as a springboard to reform that will establish meaningful controls on the size of the high-cost fund, expand broadband to those without access today, and create a new mechanism more attuned to the realities of modern technology and fair competition."

The NCTA also filed with the FCC a notice of ex parte communication on July 29. It states that the FCC should "seek comment on this proposal from a broad group of interested stakeholders, whose perspectives are likely to differ from the incumbent local exchange carriers that developed the proposal".

Daniel O'Connell, head of the Fiber to the Home Council, stated in a release that it "recognizes the importance of reforming the universal service regime and supports efforts of the industry to coalesce on a plan to achieve this objective."

The Information Technology and Innovation Foundation (ITIF) stated in a release that this plan is "bold and significant" and "built on a sound economic model that normalizes intercarrier compensation fees and ends current practices that artificially inflate both costs and prices of rural telephony such as ``traffic pumping´´ and ``phantom traffic.´´"

Derek Turner of the Free Press, a frequent critic of ILECs, stated in a release that this plan "falls short of adequately confronting the real problems with the Universal Service Fund. Worse, it ensures that the inflated profits of telecom companies are protected by shifting the burden of reform to ordinary consumers".

7/29. The U.S. Court of Appeals (9thCir) issued its opinion [24 pages in PDF] in TrafficSchool.com v. EDriver, a Lanham Act case regarding false advertising on the internet.

The plaintiffs operate web sites that market and sell traffic school and driver's education courses directly to consumers. The defendants are operators of a competing commercial web site that provides information for drivers. They make money by selling sponsored links and collecting fees for referring site visitors to vendors of traffic school courses and other services. Defendant's web site, DMV.org, is confused by some consumers to be operated by a state Department of Motor Vehicles (DMV).

Plaintiffs filed a complaint in the U.S. District Court (CDCal) alleging violation of Section 43(a) of the Lanham Act, which is codified at 15 U.S.C. § 1125(a), and California's unfair competition statute, Cal. Bus. & Prof. Code § 17200. The District Court held that the defendants violated the Lanham Act, and ordered them to place a disclaimer in their web site via a splash screen.

The Court of Appeals first held that the plaintiffs do have standing under the Lanham Act to bring this claim.

The Court of Appeals next affirmed the District Court's holding the the defendants violated the Lanham Act. The Court of Appeals wrote that "To succeed on an Internet false advertising claim, a plaintiff must show that a statement made in a commercial advertisement or promotion is false or misleading, that it actually deceives or has the tendency to deceive a substantial segment of its audience, that it's likely to influence purchasing decisions and that the plaintiff has been or is likely to be injured by the false advertisement."

The Court also wrote that ordering a splash screen disclaimer is "justified so long as it helps to remedy lingering confusion caused by defendants' past deception. But the splash screen will continue to burden DMV.org's protected content".

Hence, "On remand, the district court shall reconsider the duration of the splash screen in light of any intervening changes in the website’s content and marketing practices, as well as the dissipation of the deception resulting from past practices. If the district court continues to require the splash screen, it shall explain the continuing justification for burdening the website’s protected content and what conditions defendants must satisfy in order to remove the splash screen in the future. In the alternative, or in addition, the court may permanently enjoin defendants from engaging in deceptive marketing or placing misleading statements on DMV.org."

The Court of Appeals also affirmed the District Court's denial of damages, but remanded its denial of attorneys fees.

This case is TrafficSchool.com, Inc., et al. v. EDriver Inc., et al., U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 08-56518, an appeal from the U.S. District Court for the Central District of California, D.C. No. 2:06-cv-07561-PA-CW, Judge Percy Anderson presiding. Judge Alex Kocinsky wrote the opinion of the Court of Appeals, in which Judge William Fletcher and Robert Gettleman (USDC/NDIll, sitting by designation) joined.

The House will meet at 12:00 NOON. See, Rep. Cantor's schedule.

The Senate will meet at 1:00 PM.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding the report submitted to the FCC on June 30, 2011, by the technical working group co-chaired by LightSquared and the U.S. Global Positioning System Industry Council (USGIC). See, FCC International Bureau's (IB) order dated June 30, 2011. It is DA 11-1133 in DA 11-1133. See also report, part 1, part 2, part 3, part 4, part 5, part 6, and part 7.

10:00 AM. Day three of a three day meeting of the House Judiciary Committee (HJC) to mark up bills. The remaining agenda items include HR 83 [LOC | WW], the "Bullying Prevention and Intervention Act of 2011". See, manager's amendment [5 pages in PDF], and story titled "House Judiciary Committee to Mark Up Data Retention and Bullying Bills" in TLJ Daily E-Mail Alert No. 2,267, July 23, 2011. See, notice. The HJC will webcast this event. Location: Room 2141, Rayburn Building.

TIME? Gary Locke will take the oath of office as Ambassador to the People's Republic of China. Closed. Location?

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-90 A [135 pages in PDF] titled "Recommendation for Random Number Generation Using Deterministic Random Bit Generators".

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft NIST IR-7802 [25 pages in PDF] titled "Trust Model for Security Automation Data 1.0".

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-126 Rev. 2 [51 pages in PDF] titled "The Technical Specification for the Security Content Automation Protocol (SCAP): SCAP Version 1.2".

Deadline for the federal government to raise the limit on federal borrowing.

10:00 AM. The House Committee on Foreign Affairs will hold a hearing titled "Why Taiwan Matters". The witnesses will be Kurt Campbell (Assistant Secretary of State for East Asian and Pacific Affairs) and Michael Schiffer (Deputy Assistant Secretary of Defense for East Asia). See, notice. Location: Room 2172, Rayburn Building.

2:30 PM. The Senate Intelligence Committee (SIC) will hold a closed hearing. See, notice. Location: Room 219, Hart Building.

9:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Materials Processing Equipment Technical Advisory Committee (MPETAC) will hold a partially closed meeting. See, notice in the Federal Register Vol. 76, No. 138, Tuesday, July 19, 2011, at Pages 42678-42679. Location: DOC, Hoover Building, Room 3884,14th Street between Pennsylvania and Constitution Aves., NW.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Cybercrime: Updating the Computer Fraud and Abuse Act to Protect Cyberspace and Combat Emerging Threats". The witnesses will be James Baker (DOJ's Associate Deputy Attorney General) and Pablo Martinez (U.S. Secret Service). See, notice. The SJC will webcast this event. Location Room 226, Dirksen Building.

10:00 AM - 12:00 NOON. The House Science Committee (HSC) will hold a hearing titled "Impacts of the LightSquared Network on Federal Science Activities". See, notice. Location: Room 2318, Rayburn Building.

10:00 AM - 12:00 NOON. The House Intelligence Committee (HIC) will hold a closed hearing titled "Ongoing Intelligence Activities". See, notice. Location: Room HVC-304, Capitol Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda again includes consideration of Steve Six (to be a Judge of the U.S. Court of Appeals for the 10th Circuit) and Morgan Christen (U.S. Court of Appeals for the 9th Circuit), and four District Court nominees: Yvonne Rogers (USDC/NDCal), Richard Andrews (USDC/DDel), Scott Skavdahl (USDC/DWyo), and Sharon Gleason (USDC/DAk). The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

2:30 PM. The Senate Intelligence Committee (SIC) will hold a closed hearing. See, notice. Location: Room 219, Hart Building.

EXTENDED FROM JULY 5. Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [46 pages in PDF] regarding how its rules and policies could be modified to provide greater economic, market entry, communication adoption opportunities, and incentives for Native Nations. This notice is FCC 11-30 in CG Docket No. 11-41. The FCC adopted it on March 3, 2011, and released the text on March 4, 2011. See, notice in the Federal Register, April 5, 2011, Vol. 76, No. 65, at Pages 18759-18761. See also, extension notice (DA 11-873).

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response its 3rd Further Notice of Proposed Rulemaking (NPRM) [110 pages in PDF] regarding extensive revisions to its Part 11 rules governing the Emergency Alert System (EAS). The FCC adopted this NPRM on May 25, 2011, and released the text on May 26, 2011. It is FCC 11-82 in EB Docket No. 04-296. See, notice in the Federal Register, Vol. 76, No. 118, Monday, June 20, 2011, at Pages 35810-35831.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Public Notice regarding whether certain docketed FCC proceedings should be terminated as dormant. See, June 3, 2011, Public Notice (DA 11-992 in CG Docket No. 11-99), and notice in the Federal Register, Vol. 76, No. 118, Monday, June 20, 2011, at Pages 35892-35893.

10:00 AM. The Senate Finance Committee (SFC) will hold a hearing on the nominations of Michael Punke (to be Deputy U.S. Trade Representative), Paul Piquado (to be Assistant Secretary of Commerce), and David Johanson (to be a member of the U.S. International Trade Commission). See, notice. Location: Room 215, Dirksen Building.

EXTENDED FROM JULY 8. Deadline to submit comments to the Federal Trade Commission (FTC) in connection with June 21 event titled "Patent Standards Workshop". See, notice in the Federal Register, Vol. 76, No. 93, Friday, May 13, 2011, at Pages 28036-28038, and FTC release of May 9, 2011. See also, story titled "FTC to Hold Workshop on Standard Setting and Patents" in TLJ Daily E-Mail Alert No. 2,242, May 16, 2011. See, FTC's June 29, 2011, extension notice.

7/29. President Obama withdrew the nomination of Goodwin Liu to be a Judge of the U.S. Court of Appeals for the 9th Circuit. See, White House news office release.

Senate Republicans filibustered this nomination. Democrats' efforts to end this filibuster failed. On May 19, 2011, the Senate rejected a cloture motion, which requires a supermajority of 60 to pass, by a vote of 52-43. See, Roll Call No. 74.

While the 9th Circuit hears many technology related cases, Republican opposition did not relate to his views on any technology related issues. Rather, they perceived that Liu is very liberal on social issues, such as same sex marriage, education, welfare, and racial quotas, and that his prior statements suggest that he would render opinions in cases involving these issues that are consistent with his views, but inconsistent with statutes.

See also, story titled "Goodwin Liu Cloture Motion Fails" in TLJ Daily E-Mail Alert No. 2,245, May 19, 2011.

7/28. The Senate Judiciary Committee (SJC) held an executive business meeting at which it held over, or did not consider, all of the judicial nominees on the agenda: Steve Six (to be a Judge of the U.S. Court of Appeals for the 10th Circuit), Morgan Christen (U.S. Court of Appeals for the 9th Circuit), Yvonne Rogers (USDC/NDCal), Richard Andrews (USDC/DDel), Scott Skavdahl (USDC/DWyo), and Sharon Gleason (USDC/DAk). All are again on the agenda for the next executive business meeting on August 4, 2011.

7/28. President Obama nominated Evan Wallach to be a Judge of the U.S. Court of Appeals for the Federal Circuit. See, White House news office release and release. He has been a Judge of the U.S. Court of International Trade since 1995. Before that, he was an attorney for the Nevada Army National Guard. He has also worked for Sen. Harry Reid (D-NV). His published works suggest expertise in the law of war and war crimes. The focus of the Federal Circuit is patent law.

7/28. President Obama nominated Ronnie Abrams to be a Judge of the U.S. District Court for the Southern District of New York. See, White House news office release and release. She works in the New York City office of the law firm of Davis Polk & Wardwell. Before that, from 1998 through 2008, she was an Assistant U.S. Attorney in the Southern District of New York.

7/28. President Obama nominated Rudolph Contreras to be a Judge of the U.S. District Court for the District of Columbia. See, White House news office release and release. He is Chief of the Civil Division of the U.S. Attorneys Office for the District of Columbia.

7/29. President Obama nominated Anneila Sargent to be a member of the National Science Foundation's (NSF) National Science Board (NSB) for a term expiring on May 10, 2016. See, White House news office release and release.

7/29. President Obama withdrew the nomination of Michael Mundaca to Assistant Secretary of the Treasury for Tax Policy. See, White House news office release.

7/29. The Department of the Treasury's (DOT) Financial Crimes Enforcement Network (FinCEN) published a notice in the Federal Register that announces, describes, recites, and sets the effective date (September 27, 2011) for, its Bank Secrecy Act (BSA) rules changes regarding money services businesses, prepaid access and stored value. See, Federal Register, Vol. 76, No. 146, Friday, July 29, 2011, at Pages 45403-45420.

7/27. The National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) released is draft SP 800-67 Rev. 1 [35 pages in PDF] titled "Recommendation for the Triple Data Encryption Algorithm (TDEA) Block Cipher". The deadline to submit comments is August 31, 2011.

7/27. The National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) released its draft NIST IR-7275 Rev. 4 [77 pages in PDF] titled "Specification for the Extensible Configuration Checklist Description Format (XCCDF) Version 1.2". The deadline to submit comments is August 16, 2011.

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