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".

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.

It touts the work of the Obama administration on spectrum. "The Obama Administration has made it a priority to improve the wireless broadband infrastructure in the United States. A ``National Wireless Initiative´´ was announced in February 2011 with the stated goals of doubling the amount of spectrum available for wireless broadband services".

The document states that "a sensible policy for managing this spectrum is crucial if the United States is to improve its competitive position", and that "It is vital that the government continue to address these spectrum challenges by reallocating spectrum from existing to more efficient uses. One aspect of this reallocation is having Congress authorize the FCC to use auctions to reallocate spectrum from TV broadcasters to wireless broadband providers." (Footnote omitted.)

It also touts the work of the Obama administration on cyber security. "To help the country meet this challenge and to ensure the Internet can continue as an engine of growth and prosperity, the Administration is implementing the National Strategy for Trusted Identities in Cyberspace." In addition, "The Obama Administration has made cybersecurity at Federal departments and agencies a priority and it is moving forward on the government’s implementation of the Federal Information Security Management Act (FISMA)."

It defends the Federal Communications Commission (FCC) implemented network neutrality regulatory regime. It states that one "element of a sound ICT policy is an open Internet, one that protects consumers and innovators. Innovators need to be able to compete on their merits and not face anticompetitive barriers. Internet privacy is also crucial, and cybersecurity concerns need to be addressed. President Obama has pledged to preserve the free and open nature of the Internet to encourage innovation, protect consumer choice, and defend free speech."  (Footnote omitted.)

The document touches on immigration policy in its section on science, technology, engineering and mathematics (STEM) education. It states that "The United States must develop immigration policies to ensure that this country is welcoming to the world’s best and brightest." However, it does not suggest what those policies should be.

It states that STEM education is vital to innovation, but that the U.S. is not producing enough STEM graduates. It praises the Obama administration for making college education more affordable.

The document advocates at length more federal spending on research. It also states that "the Administration has proposed simplifying, enhancing, and extending a corporate R&D tax credit". The several references to the credit omit the word "permanent".

Section 604 required the DOC report to include "An assessment of Domestic and international intellectual property policies and practices."

However, the document states little about patents, copyrights, or other intellectual property. It does state that "A well-functioning intellectual property rights (IPR) system is crucial for encouraging innovation and creating jobs", and that "to safeguard those intellectual property rights, the Administration issued a White Paper in March 2011 with 20 recommendations for legislative changes".

The document also states that "IP protection abroad is also crucial for U.S. firms. Infringement of IPR in markets abroad causes significant financial losses for rights holders and legitimate businesses around the world and undermines key U.S. comparative advantages in innovation and creativity to the detriment of American businesses and workers. The Administration’s Joint Strategic Plan on Intellectual Property Enforcement, issued in June 2010 by the White House Intellectual Property Enforcement Coordinator, lays out a comprehensive strategy for the U.S. Government to strengthen enforcement of intellectual property rights, both at home and abroad." (Footnote omitted.)

And, it states that "The Obama Administration is committed to an intellectual property rights system that recognizes that IP rights are fully consistent with -- and indeed enable -- other core values such as the norms of legitimate competition, free speech, fair process, and the privacy of users."

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:

• February 17, USPTO Campus, Alexandria, VA.
• February 24, Sunnyvale Public Library, Sunnyvale, CA
• February 27, Marriott Library, University of Utah, Salt Lake City, UT
• February 29, Dallas Public Library, Dallas, TX
• March 2, Broward County Main Library, Ft. Lauderdale, FL
• March 5, Boston Public Library, Boston, MA
• March 7, Chicago Public Library, Chicago, IL

See also, the USPTO's AIA web page.

The House will not meet.

The Senate will meet at 11:00 AM in pro forma session only.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Data Network Storage Corp. v. Dell, Inc. and Network Appliance, Inc., App. Ct. No. 2011-1141, an appeal from the U.S. District Court (NDTex) in a patent infringement case involving storage network technology. This is the second case on this calendar. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Toshiba v. Imation, App. Ct. No. 2011-1204, an appeal from the U.S. District Court (WDWisc) in a patent infringement case involving DVD technology. This is the first case on this calendar. Location: Courtroom 203, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Red Bend Software v. Google, App. Ct. No. 2011-1375, an appeal from the U.S. District Court (DMass) in a patent infringement case involving the Chrome operating system. This is the second case on this calendar. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM - 1:00 PM. The Heritage Foundation will host an event titled "2012: Facing Political Changes in the U.S. and China". There will be two panel discussions, titled "U.S. Role in the 2012 Chinese Political Transition" and "PRC's Role in the 2012 American Presidential Election". See, notice. Location: Heritage, 214 Massachusetts Ave., NE.

11:00 AM. The Supreme Court will hear oral argument in FCC v. Fox Television Stations, Sup. Ct. No. 10-1293. This is a review of the July 13, 2010 opinion of the U.S. Court of Appeals (2ndCir), which is reported at 613 F.3d 317. This is the long running litigation regarding the broadcast of unscripted fleeting expletives and whether the Federal Communications Commission's (FCC) indecency enforcement regime violates the 1st or 5th Amendments. See, story titled "2nd Circuit Holds FCC Indecency Policy Violates First Amendment" in TLJ Daily E-Mail Alert No. 2,103, July 13, 2010.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Power Integrations v. Fairchild Semiconductor, App. Ct. No. 2011-1218, an appeal from the U.S. District Court (DDel) in a patent infringement case. This is the second case on the calendar. Location: Courtroom 402, 717 Madison Place, NW.

12:00 NOON - 2:00 PM. The DC Bar Association will host a brown bag lunch titled "Legal Issues in Mass Digitization". The speakers will be Allan Adler (Association of American Publishers), Brandon Butler (Association of Research Libraries), Catherine Rowland (Copyright Office), Corey Williams (American Library Association), Michele Woods (Copyright Office). Free. No CLE credits. See, notice. For more information, call 202-626-3463. The DC Bar has a history of barring reporters from its events. Location: DC Bar Conference Center, 1101 K St., NW.

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding changes to its program carriage rules. See, original notice in the Federal Register, Vol. 76, No. 189, Thursday, September 29, 2011, at Pages 60675-60700, and extension notice in the Federal Register, Vol. 77, No. 3, Thursday, January 5, 2012, at Pages 468-469. The FCC adopted this NPRM [120 pages in PDF] on July 29, 2011, and released it on August 1, 2011. It is FCC 11-119 in MB Docket No. 11-131. See also, story titled "FCC Program Carriage Order Includes Standstill Provision" in TLJ Daily E-Mail Alert No. 2,276, August 1, 2011.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Lens.com v. 1-800 CONTACTS, App. Ct. No. 2011-1258, an appeal from the U.S. Patent and Trademark Office (USPTO). This is the third case on this calendar. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in MagSil v. Hitachi Global Storage Technologies, App. Ct. No. 2011-1221, an appeal from the U.S. District Court (DDel) in a patent infringement case involving hard disc drive technology. This is the second case on the calendar. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Noah Systems v. Intuit, App. Ct. No. 2011-1390, an appeal from the U.S. District Court (WDPenn) in a patent infringement case involving business method patents. This is the fourth case on this calendar. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Advanced Fiber Technologies Trust v. J&L Fiber Services, App. Ct. No. 2011-1243, an appeal from the U.S. District Court (NDNY) in a patent infringement case. This is the first case on the calendar. Location: Courtroom 203, 717 Madison Place, NW.

The Senate will meet at 12:00 NOON in pro forma session only .

Supreme Court conference day. See, calendar. Closed.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Intermec Technologies v. Palm, App. Ct. No. 2011-1296, an appeal from the U.S. District Court (DDel) in a patent infringement case. This is the third case on the calendar. Location: Courtroom 201, 717 Madison Place, NW.

Martin Luther King's Birthday. This is a federal holiday. See, OPM list of 2012 federal holidays.

9:00 AM - 4:30 PM. The Net Caucus will host its annual State of the Net Conference. See, conference web site. Location: Hyatt Regency, Capitol Hill, 400 New Jersey Ave., NW.

12/29. International Intellectual Property Alliance (IIPA) submitted a letter [20 pages in PDF] to the Office of the U.S. Trade Representative (OUSTR) in which it requested that the OUSTR withdraw Ukraine's Generalized System of Preferences (GSP) benefits on the grounds that it is deficient in copyright protection and enforcement.

The IIPA wrote that "at present in Ukraine, both hard copy and digital copyright piracy is rampant, and this problem is getting insufficient attention from the Government of Ukraine. As a result, piracy rates are exceedingly high in Ukraine -- among the highest in Europe. In addition, the use of unlicensed business software by government ministries is a long-festering problem that the Government of Ukraine has not corrected. Weak enforcement of copyright has been a long-standing problem in Ukraine, but in the past year the situation has substantially worsened."

The IIPA also wrote that "there are several notorious websites hosted in Ukraine by Ukrainian ISPs that, while identified to Ukrainian enforcement officials, continue to act with impunity."

The IIPA submitted a similar letter [17 pages in PDF] regarding Indonesia. See also, IIPA release.

The IIPA represents the American Association of Publishers (AAP), Business Software Alliance (BSA), Entertainment Software Association (ESA), Motion Picture Association of America (MPAA), Recording Industry Association of America (RIAA), and other copyright based industry groups.

1/4. Scott Thompson was named CEO of Yahoo effective January 9, 2012. He will replace Tim Morse, who will return to the position of CFO. Thompson was also appointed to Yahoo's Board of Directors. He was previously President of PayPal, a division of eBay. See, Yahoo release.

1/5. The Technology Policy Institute (TPI) announced that it will host its annual Aspen Forum this year on August 19-21. The TPI stated in a release that "Participants in the 2012 Aspen Forum will explore what the 2012 elections could mean for major technology issues, including broadband and spectrum policy, competition policy, privacy, cybersecurity, Internet governance and intellectual property."

12/22. Federal Communications Commission (FCC) adopted and released an Order that approves, subject to conditions, AT&T's acquisition of Qualcomm spectrum. AT&T stated in a release on December 22 that "it has received all required regulatory approvals for AT&T’s acquisition of spectrum from Qualcomm". AT&T stated in a release on December 29 that "it has completed its acquisition of spectrum from Qualcomm".

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