TiVo attorneys met with FCC officials last week to discuss the importance of the agency’s CableCARD rules. Some of those rules were thrown into question last week by the D.C. Circuit (See separate report in this issue). “Weakening CableCARD rules via waivers, lack of enforcement, or other means hurts innovation and retail choice, undercutting the Commission’s policies,” an ex parte notice describing the meetings said (http://xrl.us/bobd4a). TiVo’s lawyers also “discussed the growing use of IP signals in all forms of delivery of video to the home, and the need for a successor standard to CableCARD that ensures the continued availability of signals in an IP world,” it said.
Some of Verizon’s customers didn’t receive an opt-out notice giving them an opportunity to restrict the use of their customer proprietary network information (CPNI) for marketing purposes, the telco told FCC officials Friday (http://xrl.us/bobd3y). Verizon usually notifies its customers of their rights regarding CPNI information either on a new customer’s first bill or in a welcome letter, and then resends the notice to existing customers every two years, it said. During the week of Jan. 14, “it appears that certain Verizon billing applications did not include the CPNI notice in cases where modifications were made to the customer’s account or order prior to the issuance of the first invoice, or where the billing application did not recognize the service purchased or type of business as requiring consent,” Verizon said. Verizon is investigating why the omission occurred, it said, and has now categorized new customers since April 2012 as having opted out. “Their CPNI will not be used in marketing efforts until remediation and notification is complete,” the telco said. The telco promised to notify all relevant state commissions.
The FCC should allow for flexibility in spectrum sharing agreements among stations that want to participate in the incentive spectrum auction, the National Association of Black Owned Broadcasters (NABOB) told FCC officials, an ex parte notice shows. Stations that share spectrum should have the flexibility to use different amounts of spectrum at different times, the notice said (http://xrl.us/bobd29). “This would allow each licensee to transmit HD programming during times when the other licensee agreed to only do SD programming,” it said. The group also described a proposed minority investment fund to assist minority station owners who participate in the auction to “invest in other broadcast facilities,” it said. “NABOB is proposing to the large telecommunications companies, which are most likely to be the major bidders in the forward auction, that they create an investment fund that could be utilized by minority entrepreneurs turning in spectrum in the reverse auction,” it said.
After the suicide of open-Internet activist Aaron Swartz, Sen. John Cornyn, R-Texas, who is on the Judiciary Committee, questioned U.S. Attorney General Eric Holder about the Justice Department’s prosecution of Swartz for violations of the Computer Fraud and Abuse Act. Swartz -- who downloaded millions of academic articles without authorization -- faced 35 years in prison and $1 million in fines as a result of the prosecution. “Mr. Swartz’s case raises important questions about prosecutorial conduct,” Cornyn wrote in a letter to Holder (http://1.usa.gov/VxJkOt). In the letter, Cornyn asked if “the prosecution of Mr. Swartz in any way retaliation for his exercise of his rights as a citizen under the Freedom of Information Act? If so, I recommend that you refer the matter immediately to the Inspector General."
Time Warner Cable (TWC) should not be mad at Netflix for only making its Super HD-formatted content available to ISPs that join Netflix’s Open Connect content delivery network (CDN), said Harold Feld, Public Knowledge senior vice president, in a blog post Thursday (http://xrl.us/bobd2g). A day earlier, TWC said in a statement that Netflix was “closing off access to some of its content while seeking unprecedented preferential treatment from ISPs” (CD Jan 18 p18). Netflix had encountered peering trouble when Comcast forced Level 3 Communications, Netflix’s then-transport ISP, to pay to connect rather than enter a peering agreement, Feld said Thursday. “It was fairly predictable after that (and after Comcast announcing that its Xfinity content would get special treatment when streamed to Comcast subscribers) that Netflix would do the Free Market thing and fight back,” he said. Fred Campbell, president of the Communications Liberty and Innovation Project, said Thursday in a separate blog post that Netflix’s actions threatened Internet freedom. “Netflix’s goal is to coerce ISPs into paying for a free Internet fast lane for Netflix content,” Campbell said (http://xrl.us/bobdz8). “If Netflix succeeds, it would harm Internet consumers and competition among video streaming providers. It would also fundamentally alter the economics and openness of the Internet."
The FCC Wireline Bureau seeks comment on two petitions for waiver of the rule that requires ILECs receiving high-cost USF support to report their local residential voice rates in effect as of June 1 each year. FairPoint Communications Missouri said it wants a waiver to correct errors in the rates it reported (http://xrl.us/bobdxm). Steelville Telephone Exchange seeks permission to refile its local rate data to reflect rates that went into effect after June 1 (http://xrl.us/bobdxo). Comments on each waiver are due Feb. 19 in docket 10-90, replies March 6.
The U.S. Circuit Court of Appeals, Federal Circuit, partially reversed a Florida U.S. District Court’s ruling in a patent infringement suit that IT company Harris Corp. filed against FedEx. Harris claimed FedEx violated a series of seven patents it holds on a technique for data collection and storage on aircraft performance and transmission of the data via spread spectrum signals, according to the federal appeals court decision. The patents all stem from U.S. Patent No. 6,047,165 -- a “wireless frequency-agile spread spectrum ground link-based aircraft data communication system.” FedEx began using its TITAN flight data transmission system on its aircraft beginning in 1998, which Harris confirmed did not violate patents because it had licensed those patents to the company that created TITAN for FedEx, the court said. The shipping company incorporated similar technology into an older fleet of aircraft in 2003, but partnered with a different manufacturer, Avionica, to create a new data transmission system, the court said. There was no indication FedEx attempted to confirm whether the new system violated Harris’s patents, and Harris filed suit in 2007, the court said. FedEx subsequently had Avionica create a software “design-around,” and later removed the system from its planes entirely, the court said. A jury for the U.S. District Court for the Middle District of Florida found “all of the asserted claims to be not invalid. Enforceable and willfully infringed,” the federal court said. FedEx moved for the court to declare a judgment as a matter of law (JMOL), arguing that Harris had failed to meet its burden of proving infringement and willful infringement, and that FedEx had established by clear and convincing evidence that the patents in question were “obvious and unenforceable due to inequitable conduct.” The district court partially granted the JMOL, finding FedEx had not willfully infringed four of the claimed patents “as a matter of law,” but otherwise denying the motion. FedEx appealed the district court’s denial of JMOL on three bases: “the district court’s denial of JMOL of non-infringement as to certain accused systems, the court’s denial of JMOL as to obviousness, and the court’s denial of JMOL as to willfulness with respect to the remaining Asserted Patents,” the federal court said. The federal three-judge panel -- Circuit Judges Alan Lourie, Raymond Clevenger and Evan Wallach -- said in its ruling Thursday it reversed the district court’s claim construction, vacated and remanded “for further consideration” the court’s denial of JMOL on non-infringement and willfulness, but affirmed the court’s denial of JMOL on validity. Wallach partially dissented in a separate opinion. “I do not agree that the ’transmitting data terms require transmission of all of the accumulated data,” he said. “Rather, because I conclude that the terms require transmission of only such data sufficient to provide a representative picture of the aircraft flight performance, I dissent in part” (http://xrl.us/bobdxb).
Eutelsat and Belgium Satellite Services signed an agreement for 46 MHz of C-band capacity on the Eutelsat 10A satellite. The capacity will allow BSS to expand very-small-aperture terminal services for a client base of more than 150 businesses, non-governmental organizations and government administrations in Africa and the Middle East, Eutelsat said in a press release (http://xrl.us/bobdyk). The contract is part of BSS’s effort to expand its services in those regions, Eutelsat said.
A group of Education Broadband Service licensees supported Dish Network’s calls for holding the Sprint Nextel/Softbank deal in abeyance, while the commission looks more closely at Sprint’s purchase of the rest of Clearwire and the ENS licenses in Clearwire’s spectrum portfolio (CD Jan 18 p17). “The EBS spectrum at issue in this proceeding has always been given serious and deliberate attention and consideration by the Commission because it is the only ‘Educational’ wireless spectrum in the United States,” said the licensees, represented by RJGLaw and attorney Rudolph Geist. “There are major ramifications of the Commission allowing control by a foreign corporation of the U.S. Educational spectrum. All issues surrounding the propriety of such potential consequence must be very carefully considered in the proceeding -- and all interested parties should have a full and fair opportunity to respond -- before any determination may be made. Holding the proceeding in abeyance will serve to slow down a possibly hasty -- and unnecessary -- pleading cycle and review of the transaction."
With a couple of exceptions, commenters in the proceeding on Globalstar’s petition for a rulemaking on use of its spectrum for terrestrial services don’t object to the FCC initiating such a rulemaking, Globalstar said in a statement. Initial comments in docket RM-11685 were due last week and replies are due Jan. 29 (CD Jan 15 p5). Most of the commenters urged the FCC to address concerns regarding the commercial roll-out of Globalstar’s proposed terrestrial low power service (TLPS), Globalstar said. The mobile satellite service (MSS) company said it’s not requesting spectrum to be licensed to it or “that it receive interference protection from unlicensed use in Channel 11,” it said. Globalstar doesn’t seek “to displace any current or future unlicensed use in that part of the ISM [industrial, scientific, medical] band, it said. U.S. GPS Industry Council said it doesn’t object to adoption of the near-term rule changes proposed by Globalstar. But, “any later proposal to use Globalstar’s L-band MSS spectrum for terrestrial broadband applications must ensure that the installed user base of the Global Positioning System is protected from desensitization and overload,” it said in its comments (http://xrl.us/boa8qb). If Globalstar’s long-term plans are adopted, it will be necessary “to implement appropriate OOBE [out-of-band-emissions] limitations and overload protection of GPS applications in the RNSS [radio navigation satellite service] band.” Iridium urged the FCC to reject the proposal to introduce LTE mobile broadband operations to the 1.6 GHz Big LEO band. The proposal “may restrict some future investment in its MSS network in favor of its terrestrial deployment,” it said (http://xrl.us/bobdwn). The petition lacks sufficient information “to offer the public a meaningful opportunity to analyze the proposal and the potential for harmful interference,” Clearwire said in its comments (http://xrl.us/bobdv4). The TLPS “would severely diminish the range, functionality and throughput of Clearwire’s system,” it said.