TLJ News from January 6-10, 2012

Comcast Completes Its Implementation of DNSSEC

1/10. Comcast announced in a release on January 10, 2012, that it "is the first large ISP in the North America to have fully implemented Domain Name System Security Extensions (DNSSEC)".

Comcast added that it both signs domain names in DNSSEC enabled top level domains (TLDs), and validates DNSSEC when its customers use the internet.

Comcast explained that "ISPs play two roles in DNSSEC. The first role is perhaps the most critical, which is validating DNSSEC as part of the DNS lookups performed for our customers. These lookups occur when a customer tries to access a site, such as Then, when a customer tries to connect to that website, a Comcast DNS server checks that domain name, and verifies that signature to ensure that it is valid and has not been tampered with by hackers or other criminals."

"The second role is to cryptographically sign the domain names that we own, such as, so that when our customers or others using DNSSEC try to connect to services in those domains, they can validate the security of the associated DNS responses."

Comcast supports bills pending in the Congress that would provide for DNS blocking. See, HR 3261 [LOC | WW], the "Stop Online Piracy Act" or "SOPA", and S 968 [LOC | WW], the "Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011" or "PROTECT IP Act".

Sen. Patrick Leahy (D-VT), the sponsor of the Senate bill, stated in a release on January 12 that "I remain confident that the ISPs -- including the cable industry, which is the largest association of ISPs -- would not support the legislation if its enactment created the problems that opponents of this provision suggest."

Perhaps it is noteworthy also that Comcast is also a content provider and copyright holder whose works are infringed by foreign web sites. Moreover, it recently acquire NBC Universal.

In addition, Comcast and other ISPs would receive certain broad immunities under the proposed legislation for, among other things, engaging in DNS blocking. Such immunity would extend to the actions of federal regulatory agencies. This may be significant because in recent years, one such agency, the Federal Communications Commission (FCC), has by both adjudication and rulemaking acted with prejudice towards Comcast's network management efforts.

Facebook Provides Nonresponsive Answers Regarding Patent Application that Discloses Privacy Invasive Technology

1/10. Facebook sent a letter [6 pages in PDF] dated December 21, 2011, to Rep. Joe Barton (R-TX) and Rep. Ed Markey (D-MA) that responds to a letter sent to it by Rep. Barton and Rep. Markey on November 10, 2011. The two publicly released the Facebook's response on January 10, 2012.

The two asked Facebook about U.S. Patent Application No. 20110231240, filed on February 8, 2011. This application claims "A method for tracking information about the activities of users of a social networking system while on another domain" for advertising purposes.

Facebook's letter is evasive and non-responsive on the underlying issue of tracking by Facebook of users on other websites when they are not logged in to Facebook.

See, full story.

Genachowski Says Draft Order Proposes Transitioning Lifeline Subsidies to Broadband

1/10. Federal Communications Commission (FCC) Chairman Julius Genachowski gave a speech on January 9, 2012, in which he discussed forthcoming changes to the FCC's universal service tax and subsidy program titled "Lifeline".

This program subsidizes monthly telephone service for certain low income users, although it is also plagued by waste, fraud and abuse. The statutory authority for this program is codified at 47 U.S.C. § 254. The FCC possesses statutory authority for this program only with respect to "telecommunications services" and a "telecommunications carrier".

Genachowski said that on Tuesday, January 10, "I will circulate to my fellow Commissioners an order to reform and modernize the Universal Service Fund's Lifeline program". He did not say that he would release the draft order to the public, or even the proposed rule changes included in the draft order.

The FCC issued a short release. The Chairman offered a description of the contents of the order in his speech. He said that it includes expanding the program to include subsidization of broadband internet access service (BIAS). He said that the order "includes ensuring the availability of broadband to low-income Americans as an expressed program goal".

On January 10, the FCC released a tentative agenda for its event on January 31 titled "open meeting". The only item on the agenda is adoption of this order.

Genachowski advanced public policy arguments for this change, but did not discuss the lack of statutory authority.

This is not a new concept. The FCC's staff report [376 pages in PDF] titled "A National Broadband Plan for Our Future", released in March of 2010, recommended this. The FCC adopted a Notice of Proposed Rulemaking (NPRM) [139 pages in PDF] on March 3, 2011 that proposed this. It is FCC 11-32 in WC Docket Nos. 11-42 and 03-109, and CC Docket No. 96-45. See also, notice in the Federal Register, March 23, 2011, Vol. 76, No. 56, at Pages 16481-16519.

There have also been legislative proposals to expand the Lifeline program to include broadband. See for example, HR 3646 [LOC | WW], the "Broadband Affordability Act of 2009", introduced in the 111th Congress by Rep. Doris Matsui (D-CA) on September 24, 2009. See also, story titled "Rep. Matsui Introduces Bill to Expand FCC Lifeline Universal Service Subsidies to Cover Broadband" in TLJ Daily E-Mail Alert No. 1,993, September 30, 2009.

Rep. Matsui stated in a release on January 9 that "as the FCC continues its work to transition the Universal Service Fund to broadband, I believe the FCC should expand the Lifeline Assistance program for universal broadband adoption. This specific reform would enable low-income households to have access to affordable broadband services and connect with the increasingly digital American economy."

Genachowski stated in his January 9 speech that the universal service programs "needed to be updated for the Internet age". He added that the Lifeline "program is outdated, focused on phone service when high-speed Internet has become our vital communications platform."

He elaborated that "as a first step toward transitioning the program to support broadband, it would establish a Broadband Adoption Pilot Program using savings from other reforms. The program would test and determine how Lifeline can best be used to increase broadband adoption among Lifeline-eligible consumers."

He also conceded that there is waste, fraud and abuse in this program. He said that "much of the program's recent growth stems from waste and inefficiency".

Moreover, said Genachowski, "some unscrupulous carriers are abusing the program -- obtaining support for consumers who did not sign up for Lifeline by mailing them phones already set up for Lifeline service, or signing people up for Lifeline who aren't eligible for the program".

He said that his new rules "would also standardize the program's eligibility requirements and clarify rules to further tackle the issues of duplicative or otherwise improper support." He added that the "old rules may have invited end-runs and created loopholes some carriers are exploiting. This order would close those loopholes." He outlined other items in the draft order directed at reducing fraud and abuse.

Genachowski also announced that "a proposal that accompanies the Order seeks comment" on further expanding universal service subsidies to cover "digital literacy training at libraries and schools".

Rep. Anna Eshoo (D-CA), ranking Democrat on the House Commerce Committee's (HCC) Subcommittee on Communications and Technology, praised Genachowski. She stated in a release that "It's time to modernize the program by bringing it into the 21st Century, with support of broadband access for low-income Americans".

Walter McCormick, head of the USTelecom, stated in a release that "We support the Chairman's efforts to reform and modernize the Lifeline fund to ensure that this important program accomplishes its goals in the most efficient way possible. In addition, the Chairman's proposal to begin a data-driven pilot program process to understand the role that the Lifeline program should play in today's broadband world makes sense and should produce valuable insight."

Wade Henderson, head of the Leadership Conference on Civil and Human Rights (LCCHR), stated in a release that "High-speed internet is an essential service for Americans seeking to move out of poverty and thrive in the modern economy." He continued that "The Chairman's plan to modernize Lifeline to include broadband is an important first step ... but we are concerned that it puts the program years away from having a notable impact on narrowing the digital divide." He also expressed concern about limiting the size of the program.

Matt Wood of the Free Press stated in a release that "Reforming and redirecting Lifeline toward broadband is essential. While preliminary steps in that direction are encouraging, pilot programs and private initiatives will not be enough".

FCC Releases EAS/CAP Fifth Report and Order

1/10. The Federal Communications Commission (FCC) released its Fifth Report and Order [130 pages in PDF] in its proceeding regarding the Emergency Alert System (EAS) and the Common Alerting Protocol (CAP).

The rule revisions adopted by this order set forth in more detail the FCC's previously adopted requirement that EAS participants be able to receive CAP formatted messages.

This item states that it is another step in the process of converting the EAS "into a more technologically advanced alerting system".

The FCC adopted this order on January 9, and released it on January 10. It is FCC 12-7 in EB Docket No. 04-296.

People and Appointments

1/10. Rep. Wally Herger (R-CA) announced that he will not run for re-election in November of 2012. He is a former Chairman of the House Ways and Means Committee's (HWMC) Subcommittee on Trade, and the current Chairman of the Subcommittee on Health. See also, statement by Rep. Dave Camp (R-MI), Chairman of the HWMC.

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1/10. The Federal Communications Commission (FCC) released its Fifth Report and Order [130 pages in PDF] long running proceeding regarding the Emergency Alert System (EAS). This order continues the FCC's process of revising its EAS rules to specify the manner in which EAS participants must be able to receive alert messages formatted in the Common Alerting Protocol (CAP). The FCC adopted this item on January 9, 2012, and released the text on January 10. It item is FCC 12-7 in EB Docket No. 04-296.

FCC Files Brief with Court of Appeals in Challenge to Its Data Roaming Rules

1/9. The Federal Communications Commission (FCC) filed its brief [136 pages in PDF] with the U.S. Court of Appeals (DCCir) in Cellco Partnership dba Verizon Wireless v. FCC, a petition for review of the FCC's data roaming order.

The FCC's brief makes an effective policy argument for the imposition of data roaming rules, particularly on large services providers AT&T and Verizon. However, the brief grasps at meritless arguments that the rules do not impose Title II common carrier regulation on non-Title II services. The FCC brief thus demands lenient Chevron deference.

The FCC adopted and released its Second Report and Order [79 pages in PDF] on April 7, 2011. It is FCC 11-52 in WT Docket No. 05-265. It imposes common carrier like regulations for data roaming, in the absence of statutory authority for doing so. The Commission divided 3-2, with Democrats Julius Genachowski, Michael Copps and Mignon Clyburn supporting the item, and Republicans Robert McDowell and Meredith Baker dissenting.

The FCC has long imposed voice roaming rules. This order provides that any "Commercial Mobile Data Service" is required to offer roaming arrangements on "commercially reasonable terms and conditions". See, story titled "FCC Adopts Data Roaming Rules" in TLJ Daily E-Mail Alert No. 2,219, April 7, 2011.

The FCC's brief states that data roaming "allows consumers to obtain data service over their cellular phones and other mobile devices when they travel outside their own wireless provider’s network coverage area, by relying on another wireless provider’s network".

It continues. "Propelled by the increasing popularity of smartphones (like Apple's iPhone) and tablets (like the iPad), consumer demand for mobile Internet access has exploded in recent years. Today, tens of millions of Americans rely on wireless devices to access mobile broadband service for business or personal use. The utility of mobile broadband service, however, is seriously eroded if consumers lose connectivity when they travel (or ``roam´´) outside their own wireless provider's network coverage area." (Parentheses in original.)

The FCC brief asserts that "Data roaming agreements between service providers address this", but that the record in this proceeding shows that "wireless providers had been unable to secure data roaming arrangements ... with AT&T and Verizon".

The FCC's brief argues that its new rules do not impose a common carriage requirement, and that its rules are permissible under Title III.

In the alternative, it argues that Section 706 of the Telecommunications Act of 1996 authorizes the FCC to adopt common carrier regulation for data services. Section 706 is codified at 47 U.S.C. § 1302. This section contains the policy statement that the FCC and state commissions "shall encourage the deployment on a reasonable and timely basis of advanced telecommunications capability".

This case is Cellco Partnership dba Verizon Wireless v. FCC and USA , U.S. Court of Appeals for the District of Columbia, App. Ct. Nos. 11-1135 and 11-1136, petitions for review of a final order of the FCC. The Court of Appeals has not yet scheduled a date for oral argument in this case.

Four Senators Advocate Use of Incentive Auction Process for Allocating Spectrum for Unlicensed Use

1/9. Sen. John Kerry (D-MA), Sen. Olympia Snowe (R-ME), Sen. Mark Warner (D-VA), and Sen. Jerry Moran (R-KS) wrote a letter to Senate leaders in which they argued that spectrum legislation should provide for a incentive auction process that would also give the Federal Communications Commission (FCC) authority to allocate spectrum for unlicensed use.

They wrote that "Our first concern is whether or not the FCC should set aside some spectrum in certain bands for unlicensed use. We believe the FCC should be afforded some discretion to make this decision".

They added, without specifically referencing the House Commerce Committee (HCC) bill, that "Unfortunately, a proposal currently being considered prohibits the FCC from allocating spectrum cleared in the broadcast bands for unlicensed use."

They elaborated that "It may be that the spectrum cleared is best left for licensed use, but Congress should defer to the FCC to make the proper determination of optimizing the allocation of spectrum given the dynamic nature of the industry and wireless technologies."

In addition, they wrote that they have concerns about "proposals to limit the FCC's authority to carefully design future spectrum auctions. Some have proposed prohibiting the agency from imposing eligibility conditions on auction participants. While at first this may seem appropriate to ensure an open auction where all can take part and would be in a market with perfect competition, upon closer examination this could have a deterring effect on fostering competition and maximizing auction proceeds to pay for a public safety network and deficit reduction."

They concluded that "Maintaining the FCC’s current range of tools for structuring a spectrum auction, as prescribed by the statute, provides the agency with the requisite flexibility to attract a sufficient number of bidders to ensure the competitive bidding necessary to maximize auction revenues and that the market for spectrum remains competitive for companies of all sizes."

USPTO to Hold Public Meetings on AIA Rules Changes

1/9. The U.S. Patent and Trademark Office (USPTO) announced that it will host a series of seven public events in various cities to discuss and receive public comments on rules changes that implement HR 1249 [LOC | WW], the "Leahy-Smith America Invents Act", or "AIA", which was signed into law in September of 2011.

On January 5, 2012, the USPTO published three notices in the Federal Register that propose changes to its rules of practice pertaining to post patent reviews, pre patent issuance submissions by third parties, and USPTO disciplinary proceedings. More notices of forthcoming rules changes will follow. See, story titled "USPTO Announces America Invents Act Implementation Rulemaking Proceedings" in TLJ Daily E-Mail Alert No. 2,322, January 9, 2012.

Each event will run from 10:00 AM until 4:30 PM with a break for lunch. The schedule of events is as follows:

See also, the USPTO's AIA web page.

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1/9. The Federal Communications Commission's (FCC) Public Safety and Homeland Security Bureau (PSHSB) released an order [10 pages in PDF] regarding 700 MHz interoperable public safety wireless broadband networks. This order is DA 12-25 in PS Docket No. 06-229.

1/9. The Government Accountability Office (GAO) released a report [77 pages in PDF] titled "Cybersecurity Guidance Is Available, but More Can Be Done to Promote Its Use".

1/9. The Office of the U.S. Trade Representative (OUSTR) announced in a release that "Ron Kirk was previously scheduled to lead a delegation to India this week for the U.S.-India Trade Policy Forum (TPF). However, while considerable progress on developing the agenda for the TPF has been made, in view of the amount of preparatory work that remains to be done, the United States and India have decided to postpone the TPF until later this year."

Department of Commerce Release Competes Act Report

1/6. The Department of Commerce (DOC) released a document [160 pages in PDF] titled "The Competitiveness and Innovative Capacity of the United States".

The Congress passed HR 5116 [LOC | WW], the "America COMPETES Reauthorization Act of 2010", in the closing days of the lame duck session of the 111th Congress. The House roll call vote in May on this bill was a nearly straight party line vote. The Act is now Public Law No. 111-358. Section 604 of the Act required that the DOC write a "complete a comprehensive study of the economic competitiveness and innovative capacity of the United States".

The just released document is full of election year praise for the work of the Obama administration, and Obama quotations.

See, full story.

NIST/CSD Releases Draft Documents

1/6. The National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) released four draft documents for public comment. The deadline to submit comments for all four is February 17, 2012. See:

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1/6. The U.S. District Court (EDVa) sentenced Hana Amal Beshara to serve 22 months in prison following her September 29, 2011, plea of guilty to conspiracy and criminal copyright infringement. The Department of Justice (DOJ) stated in a release that Beshara "was one of the founders of the website, which operated from February 2008 until it was shut down by law enforcement in June 2010. offered visitors the ability to view, without charge, many movies still in theaters as well as some movies that had not yet been released in theaters, and many television programs immediately after they aired."

1/6. David Foley pled guilty in the U.S. District Court (NDCal) to conspiracy to commit mail and wire fraud, and conspiracy to commit bank fraud. The Office of the U.S. Attorney for the Northern District of California explained in a release: "he manufactured thumb drives, known as ``game packs,´´ containing video gaming software that could be loaded onto arcade video game machines made for the home market. Foley illegally produced the products from his home while working as the chief technology officer of Global VR, which had previously acquired all rights to produce and sell games under the UltraCade name. After producing the game packs, Foley sold the products to a co-defendant located in Milford, Conn., and agreed to sell the game packs to the public using packaging and advertisements that falsely represented the goods to have been genuinely manufactured by UltraCade. Foley thereafter received payment for the illegally manufactured game packs by mail and wire."

1/6. The Office of the U.S. Trade Representative (OUSTR) announced in a release that it "will hold working-level meetings with Korea on January 9-10 in Seoul to continue discussions related to implementation of the U.S.-Korea trade agreement".

Go to News from January 1-5, 2012.