11/6. The U.S. Court of Appeals (5thCir) released its opinion [15 pages in PDF] in Hill v. FCC, denying a petition for review in a case regarding the Federal Communications Commission's (FCC) waste, fraud and abuse plagued e-rate tax and subsidy program.

This case pertains to e-rate subsidies for equipment and services provided to the Houston Independent School District (HISD). The petitioner is Joseph Hill, trustee in bankruptcy for Lakehills Consulting. Prior to filing a Chapter 7 bankruptcy petition in 2009, Lakehills performed work on contracts with the HISD. However, the FCC's Universal Service Administrative Company (USAC) withheld payments for the years 2002, 2003 and 2004, for reasons related to fraud and violation of FCC rules by Lakehills' predecessor. That is, Lakehills did not get paid because the corrupt company that it replaced had violated the FCC's rules.

Hill filed an administrative appeal with the FCC. The FCC issued an order denying that appeal, because the FCC has a full recovery rule that provides that e-rate subsidies that have been disbursed in violation of the FCC's competitive bidding rules should be recovered in full.

The present petition for review followed. Hill argued that this full recovery rule is both a violation of law and arbitrary and capricious. The Court acknowledged that it was a predecessor company that violated the FCC's rules, and that "Lakehills has suffered hardship from the FCC's strict adherence to its full recovery rule for violations of its competitive bidding rules", but nevertheless denied the petition.

The FCC's e-rate program bears a vague resemblance to a program codified at 47 U.S.C. § 254. Subsection 254(h) provides for telecommunications carriers to subsidize telecommunications services at elementary and secondary schools, libraries, and health clinics. As implemented by the FCC, subsidies are provided for telephone service, internet access, and internal connections.

This case is Joseph Hill v. FCC and USA, U.S. Court of Appeals for the 5th Circuit, App. Ct. No. 12-60070, a petition for review from a final order of the FCC. This is a per curiam opinion of a three judge panel comprised of Judges Stewart, Garza and Elrod. This opinion states that "this opinion should not be published and is not precedent".

11/7. The U.S. District Court (CDCal) issued document under seal in Fox v. DISH denying Fox's motion for a preliminary injunction against the Dish Network.

Fox, ABC, CBS, and NBC filed their complaint on May 24, 2012, alleging direct copyright infringement by the Dish Network. The complaint alleges that the TV networks licensed Dish to retransmit primetime network programming, but that DISH "launched it own bootleg broadcast video-on-demand service called PrimeTime Anytime that is available to top-tier DISH subscribers who lease the Hopper set top box from DISH. Once enabled, PrimeTime Anywhere makes an unauthorized copy of the entire primetime broadcast schedule for all four" networks. And, DISH operates this service "so that the copies it makes are viewable commercial free".

Dish stated in a November 7 release that "The PrimeTime Anytime feature allows users to easily record the primetime shows on up to each of the four broadcast networks (ABC, CBS, NBC and Fox) and save them for up to eight days. The AutoHop feature allows users to play back certain PrimeTime Anytime recordings commercial-free, starting the day after broadcast." (Parentheses in original.)

The District Court denied the motion for a preliminary injunction.

Fox stated in a release that it will appeal.

Dish stated in its release that "The ruling underscores the U.S. Supreme Court’s ‘Betamax’ decision, with the court confirming a consumer's right to enjoy television as they want, when they want, including the reasonable right to skip commercials, if they so choose."

Dish's release offers its summary of the Court's document.

The Public Knowledge (PK) filed an amicus curiae brief [28 pages in PDF] in support of Dish. The PK's John Bergmeyer stated in a release on November 7 that "Consumers have a right to record television programs and watch them later in the manner of their choosing. ... the law is clear: consumers have the right to make home recordings, and technology companies don't break the law when they create new and improved devices. We're confident that the rights of television viewers and innovators will be continue to be vindicated in this matter".

See also, story titled "Public Knowledge Files Amicus Brief in Fox v. DISH" in TLJ Daily E-Mail Alert No. 2,455, October 1, 2012.

This case is Fox Broadcasting Company, Inc., et al.  v. DISH Network LLC, et al., U.S. District Court for the Central District of California, D.C. No. CV12-04529-DMG (SHx), Judge Dolly Gee presiding.

11/7. AT&T filed a petition for rulemaking [28 pages in PDF] with the Federal Communications Commission (FCC) regarding allowing incumbent local exchange carriers (ILEC) to replace time division multiplexed (TDM) with internet protocol (IP) facilities in select wire centers.

AT&T's Bob Quinn stated in a release that "We are asking for a proceeding and a beta trial to address all of the policy, technology, technical and operational questions that must be addressed to complete the transition away from the legacy TDM infrastructure".

He added that "Our plan will be to do our very best to provide our customers with services built on an IP broadband architecture.  And for those few we cannot reach with a broadband service, whether wireline or wireless, they will still be able to keep voice service."

In conjunction, AT&T announced plans to invest an additional $14 Billion over three years in its wireline and wireless networks. See, related story in this issue titled "AT&T Announces Additional Investment in Its Wireline and Wireless Broadband Networks".

Federal Communications Commission (FCC) Chairman Julius Genachowski stated in a release that "As we review AT&T's filing, we will focus on the principles that have guided our actions since I became Chairman: driving the virtuous cycle of private investment and innovation in the broadband ecosystem, promoting competition, and protecting consumers."

This petition states that the FCC should "eliminate, within the trial wire centers, outdated ``telephone company´´ regulations that may require carriers to maintain legacy TDM-based networks and services even after replacement services are in place."

This petition also states that to the extent that VOIP replaces legacy circuit switched telephony in the trial wire centers, the FCC should "preclude carriers (including carrier customers) from demanding service or interconnection in TDM format in those wire centers." (Parentheses in original.)

This petition also states that the FCC should "implement reforms to facilitate the migration of end-user customers from legacy to next-generation services", and "prevent a few customers from delaying that transition, as happened in the transition from analog to digital television and in the sunset of analog cellular services".

This petition also states that the FCC should "keep IP services free of legacy regulation so that the trial may proceed without the distorting and investment-chilling effects of such regulations".

This petition also states that the FCC should use it waiver and forbearance authority, and "preempt any state regulatory obligations that would interfere with these experiments or subvert ... a smooth and rapid transition to the all-IP broadband environment of tomorrow".

11/7. AT&T announced in a release its "plans to invest $14 billion over the next three years to significantly expand and enhance its wireless and wireline IP broadband networks to support growing customer demand for high-speed Internet access and new mobile, app and cloud services."

AT&T's release also states that "Wired IP broadband network expected to expand to 75 percent of customer locations in AT&T's 22-state wireline service area by year-end 2015", "Fiber deployment expected to reach 1 million additional business customer locations, covering 50 percent of multi-tenant office buildings in AT&T's wireline service area by year-end 2015" and "Investment expected to be approximately $14 billion over three years -- $8 billion for wireless initiatives, $6 billion for wireline initiatives; Total capital spending expected to be approximately $22 billion for each of next three years".

AT&T made this announcement in conjunction with its filing of a petition for rulemaking [PDF] with the Federal Communications Commission (FCC). AT&T's wants the FCC to adopt a variety of new rules that it states will facilitate the transition from legacy to IP facilities in select wire centers. See, related story in this issue titled "AT&T Files Petition for Rulemaking Regarding Trial Replacement of TDM with IP".

Rep. Henry Waxman (D-CA), the ranking Democrat on the House Commerce Committee (HCC), stated in a release that "I applaud AT&T's significant commitment to investment in America's broadband infrastructure. Investments like this enhance our economic competitiveness and facilitate the expansion of broadband and IP networks. Ensuring that our laws and regulations continue to encourage these investments -- while promoting competition and protecting consumers -- are important goals for all policymakers to consider."

Harold Feld of the Public Knowledge (PK) stated in a release that "AT&T is to be applauded for investing in its network and breathing new life into DSL and rural wireless. This investment will not only create new jobs and bring broadband to the heartland, it has the potential to revive competition with cable broadband at a time when many had concluded we were doomed to a cable monopoly."

But, he continued that AT&T would not have done this if the Department of Justice (DOJ) had not blocked AT&T's attempted acquisition of T-Mobile USA.

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Notices & Disclaimers
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The House will not meet. It is in recess, except for pro forma sessions, until after the November elections.

The Senate will not meet. It is in recess, except for pro forma sessions, until November 13, 2012.

9:00 AM. Day one of a two day meeting of the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Information Systems Technical Advisory Committee. The November 7 portion of this meeting is open to the public. See, notice in the Federal Register, Vol. 77, No. 204, October 22, 2012, at Page 64464. Location: DOC, Hoover Building, Room 3884, 14th Street between Constitution and Pennsylvania Avenues, NW.

10:00 AM. The Supreme Court will hear oral argument in Already v. Nike, Sup. Ct. No. 11-982. The question presented is "Whether a federal district court is divested of Article III jurisdiction over a party's challenge to the validity of a federally registered trademark if the registrant promises not to assert its mark against the party's then-existing commercial activities." See, Supreme Court docket. Location: Supreme Court, 1 First St., NW.

10:00 AM - 3:00 PM. The Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health Information Technology's (NCOHIT) HIT Policy Committee will meet. See, notice in the Federal Register, Vol. 77, No. 207, October 25, 2012, at Page 65191. Location: Omni Shoreham Hotel, 2500 Calvert St., NW.

11:00 AM - 3:00 PM. The Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) will host an on site and webcast meeting on mobile privacy. The agenda [PDF] includes a discussion of a draft [MS Word] of the "Mobile Application Transparency Code of Conduct". See, NTIA page for live webcast. Location: American Institute of Architects, 1735 New York Ave., NW.

12:00 NOON. The World Wide Web Consortium's (W3C) Tracking Protection Working Group will meet by teleconference. The call in number is 1-617-761-6200. The passcode is TRACK (87225).

1:00 - 2:00 PM. The American Bar Association's (ABA) Section of Antitrust will host a teleconferenced panel discussion titled "EU and US Perspectives on EU Data Protection Reform". The speakers will be Gail Slater (FTC), Bruno Lebrun (UGGC Avocats), Yael Weinman (FTC), and Lindsey Finch (Salesforce.com). Free. No CLE credits. See, notice.

1:00 - 5:00 PM. The Department of Homeland Security's (DHS) Data Privacy and Integrity Advisory Committee will meet. See, notice in the Federal Register, Vol. 77, No. 191, October 2, 2012, at Pages 60131-60132. Location: Ronald Reagan Building, Room B 1.5-10, 1300 Pennsylvania Ave., NW.

1:00 PM. The New America Foundation (NAF) will host a panel discussion titled "Information Overload: How Elected Leaders Find Expert Knowledge in the Internet Era".Gary VanLandingham (Pew Center), Lorelei Kelly (NAF), Ben Freakly (Arizona State University), and Andrew Rich (Truman Scholarship Foundation). Free. Open to the public. The NAF will webcast this event live. See, notice. Location: NAF, Suite 400, 1899 L St., NW.

2:00 - 4:00 PM. The National Science Foundation's (NSF) Networking and Information Technology Research and Development National Coordination Office's Large Scale Networking Coordinating Group's Middleware and Grid Interagency Coordination Team will meet. See, notice in the Federal Register, Vol. 77, No. 183, September 20, 2012, at Pages 58416. Location: NSF, 4201 Wilson Boulevard, Arlington, Virginia.

The House will not meet.

The Senate will not meet.

8:15 AM - 5:00 PM. The American Bar Association (ABA) will host a conference titled "2012 Antitrust Fall Forum". The speakers and other participants will include Judge Douglas Ginsburg (USCA/DCCir), Judge Dianne Wood (USCA/7thCir), Renata Hesse (DOJ/AD), Lynda Marshall (DOJ/AD), Leslie Overton (DOJ/AD), Deirdre McEvoy (DOJ/AD), Thomas Rosch (FTC Commissioner), Maureen Ohlhausen (FTC Commissioner), Howard Shelanski (Director of the FTC's Bureau of Economics), David Vladeck (Director of the FTC's Bureau of Consumer Protection), Reilly Dolan (FTC), Zachary Katz (Chief of Staff to FCC Chairman Genachowski), Jake Sullivan (Department of State), Lucy Morris (CFPB), Scott Hemphill (Chief of the Antitrust Bureau, New York), and Carlos Ragazzo (Superintendent of the Council for Economic Defense, Brasilia, Brazil). Prices vary. CLE credits. See, event web site and agenda. Location: National Press Club, 13th Floor, 529 14th St. NW.

9:00 AM. Day two of a two day meeting of the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Information Systems Technical Advisory Committee. The November 8 portion of this meeting is closed to the public. See, notice in the Federal Register, Vol. 77, No. 204, October 22, 2012, at Page 64464. Location: DOC, Hoover Building, Room 3884, 14th Street between Constitution and Pennsylvania Avenues, NW.

RESCHEDULED. 9:30 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Sensors and Instrumentation Technical Advisory Committee will hold a partially closed meeting. See, notice in the Federal Register, Vol. 77, No. 213, November 2, 2012, at Pages 66178-66179. Location: DOC, Hoover Building, Room 6087B, 14th Street between Constitution and Pennsylvania Avenues, NW.

9:30 - 11:00 AM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "The Impact of Cloud Computing On Developing Economies". The speakers will be Robert Atkinson (ITIF), Peter Cowhay (UC San Diego), Bernard McKay (Intuit), and Ken Zita (Network Dynamics). See, notice. Location: ITIF/ITIC, Suite 610A, 1101 K St., NW.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast and teleconferenced panel discussion titled "Kirtsaeng v. John Wiley & Sons, A Post Supreme Court Oral Argument Review". The speakers will be Andrew Berger (Tannenbaum Helpern) and Scott Bain (SIIA). Prices vary. CLE credits. See, notice.

5:00 PM. The University of Maryland's (UM) Cyber Security Center will host a presentation by Wenke Lee (Georgia Tech School of Computer Science). This event is free, and open to the public, but registration is required. See, notice. Location: UM, Computer Science Instructional Center, Room 1115, MD.

6:30 - 10:00 PM. The Federal Communications Bar Association (FCBA) will host an event titled "23rd Annual Charity Auction". For more information, contact Brendan Carr at brendantcarr at gmail dot com or Kerry Loughney at kerry at fcba dot org. Location: Capital Hilton, 1001 16th St., NW.

The House will meet at 1:00 PM in pro forma session.

The Senate will meet at 10:00 AM in pro forma session.

12:00 NOON - 1:30 PM. The DC Bar Association will host a presentation titled "iPad for the Litigating Attorney". The speaker will be Judge Herbert Dixon (D.C. Court's Technology Enhanced Courtroom Pilot Project). Free. No CLE credits. For more information, call Daniel Mills at 202-626-1312. The DC Bar has a history of barring reporters from its events. Register by sending an e-mail to dmills at dcbar dot org. See, notice. Location: DC Bar Conference Center, 1101 K St., NW.

5:00 PM. Deadline to submit comments to the Department of Commerce's (DOC) National Oceanic and Atmospheric Administration's (NOAA) Science Advisory Board regarding its draft report [21 pages in PDF] titled "A Review of NOAA’s Future Satellite Program: A Way Forward". See, notice in the Federal Register, Vol. 77, No. 196, October 10, 2012, at Page 61573.

5:00 PM. Extended deadline to submit comments to the National Telecommunications and Information Administration (NTIA) in response to its notice in the Federal Register that requests comments regarding the creation of the interoperable public safety broadband network by the First Responder Network Authority, or FirstNet, as required by the spectrum bill enacted in February. The original deadline was November 1. See, original notice in the FR, Vol. 77, No. 193, October 4, 2012, at Pages 60680-6068. The extended deadline is November 9. See, NTIA notice. See also, story titled "NTIA Releases Public Safety Network NOI" in TLJ Daily E-Mail Alert No. 2,458, October 4, 2012.

Veterans Day.

Veterans Day observed. This is a federal holiday. See, OPM list of 2012 federal holidays.

12:00 NOON - 1:00 PM. The American Bar Association (ABA) will host a teleconferenced panel discussion titled "Discovery by Leaps and Bounds: Practical Issues in International Antitrust Cases". The speakers will be Scott Martin (Greenberg Traurig), Hollis Salzman (Labaton Sucharow), and Belinda Hollway (Freshfields Bruckhaus Deringer). Prices vary. No CLE credits. See, notice.

The Senate will return from its elections recess at 2:00 PM.

9:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Materials Processing Technical Advisory Committee will hold a partially closed meeting. See, notice in the Federal Register, Vol. 77, No. 211, October 31, 2012, at Page 65857. Location: DOC, Hoover Building, Room 3884, 14th Street between Constitution & Pennsylvania Avenues, NW.

9:00 AM - 3:00 PM. The Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health Information Technology's (ONCHIT) HIT Standards Committee will meet. Open to the public. See, notice in the Federal Register, Vol. 77, No. 210, October 30, 2012, at Page 65691. Location: Dupont Circle Hotel, 1500 New Hampshire Ave., NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in NetCoalition v. SEC, App. Ct. No. 10-1421. This is a challenge to NYSE Arca fees for market data brought by the NetCoalition and the Securities Industry and Financial Markets Association (SIFMA). See, petitioner's brief. The NetCoalition is winding down its operations, but its members include Bloomberg, Yahoo, Google and others. This is the first case on the calendar. Judges Sentelle, Henderson and Rogers will preside. Location: USCA Courtroom, 5th floor, Prettyman Courthouse, 333 Constitution Ave., NW.

1:00 - 2:00 PM. The law firm of Fulbright Jaworski will host a webcast panel discussion titled "Ethical Considerations Involved in the In-house Counsel or Private Practitioner’s Use of the Internet and Social Media". The speakers will be Shafeeqa Giarratani (FJ), Colleen Dorsey (Land O'Lakes, Inc.), Richard Painter (University of Minnesota Law School), and Barbara D’Aquila (FJ). For more information, contact Katie Potter at kpotter at fulbright dot com.

TIME? The Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) will hold another in a series of meetings regarding consumer data privacy in the context of mobile applications. See also, NTIA web page titled "Privacy Multistakeholder Process: Mobile Application Transparency". This event will be webcast.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Broadband and Engineering and Technical Committees will host a brown bag lunch titled "Broadband Innovation". Free. No CLE credits. Location: NAB, 1771 N St., NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Gresham Communications, Inc. v. FCC, App. Ct. No. 11-1343. This is an appeal of a Memorandum Opinion and Order of the FCC regarding involuntary transfer of licenses of delinquent debtor licensees. See, FCC brief 39 pages in PDF]. Judges Sentelle, Henderson and Rogers will preside. This is the first of three items on the Court's agenda. Location: USCA Courtroom, 5th floor, Prettyman Courthouse, 333 Constitution Ave., NW.

10:00 AM. The House Science Committee's (HSC) Subcommittee on Technology and Innovation will hold a hearing titled "Is ``Meaningful Use´´ Delivering Meaningful Results?: An Examination of Health Information Technology Standards and Interoperability". The witnesses will be Farzad Mostashari (DHHS National Coordinator for Health Information Technology), Charles Romine (NIST), Marc Probst (Intermountain Healthcare), Rebecca Little (Medicity), and Willa Fields (San Diego State University School of Nursing). The HSC will live webcast this hearing. See, notice. Location: Room 2318, Rayburn Building.

10:00 AM - 12:00 NOON. The American Enterprise Institute (AEI) will host a panel discussion titled "Should the UN Control the Internet?". The World Conference on International Telecommunications (WCIT) will commence in Dubai on December 3. The speakers will be Terry Kramer (Ambassador, head of the US delegation to the WCIT), Fiona Alexander (NTIA), Leonard Cali (AT&T), David Gross (Wiley Rein), Ross LaJeunesse (Google), Robert McDowell (FCC Commissioner), and Jeffrey Eisenach (AEI). See, notice. Location: 12th floor, 1150 17th St., NW.

10:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Materials Technical Advisory Committee will hold a partially closed meeting. See, notice in the Federal Register, Vol. 77, No. 211, October 31, 2012, at Page 65857. Location: DOC, Hoover Building, Room 3884, 14th Street between Constitution & Pennsylvania Avenues, NW.

10:00 AM. The U.S. China Economic and Security Review Commission will host a news conference to release its 2012 annual report to Congress. See, original notice in the Federal Register (FR), Vol. 77, No. 143, July 25, 2012, at Pages 43662-43663; further notice in the FR, Vol. 77, No. 171, September 4, 2012, at Pages 53965-53966; and further notice in the FR, Vol. 77, No. 214, November 5, 2012, at Pages 66503-66504. Location: Room 538, Dirksen Building, Capitol Hill.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Public Notice (PN) [MS Word] regarding access technology and enhanced database operations for video relay service (VRS). The FCC released this PN on October 15, 2012. It is DA 12-1644 in CG Docket Nos. 03-123 and 10-51. See also, notice in the Federal Register, Vol. 77, No. 209, October 29, 2012, at Pages 65526-65530.