Thursday, November 13, 2014

Internet 2025: Can we keep it open and evolving? ISOC Video

Panelists:
Vinton Cerf, Vice President and Chief Internet Evangelist, Google, Marconi Fellow (1998);
Robert Kahn, Founder and CEO, Corporation for National Research Initiatives (CNRI), Marconi Fellow (1994);
Joseph Kakande, Alcatel-Lucent Bell Labs, Marconi Society Paul Baran Young Scholar (2011);
Leonard Kleinrock, Distinguished Professor, UCLA, Marconi Fellow (1986);
Dan Kaufman, Director, Information Innovation Office, DARPA. Moderator: Ali Velshi, Host, Al Jazeera America


d

Is a ccTLD Property? Not in the District of Columbia


This decision comes from an ongoing litigation where plaintiffs, in order to satisfy  a debt, sought to attach as property the ccTLDs for Iran, Korea, and Syria.  ICANN moved to quash, and the court agreed, holding that ccTLDs are not property subject to attachment.  The court wrote
There is little authority on the question of whether Internet domain names may be attached in satisfaction of a judgment. Indeed, no reported decision of any American court appears to have decided the specific issue of whether a ccTLD may be attached. The Virginia Supreme Court's discussion of these issues in Network Solutions Inc. v. Umbro Int'l, Inc., 529 SE2d 80 (VA. 2000) is helpful in illuminating the questions presented.  There, the court held that a domain name could not be garnished by a judgment creditor under the relevant Virginia statute because it was "inextricably bound" to the domain name services provided by the registry operator. Id. At 86. The court elaborated: "[W]hatever contractual rights the judgment debtor has in the domain names at issue in this appeal, those rights do not exist separate and apart from [the registry] services that make the domain names operational Internet addresses."  Id. The court further observed that allowing garnishment of a registry's services as part of garnishing a right to a domain name would mean that "practically any service would be garnishable." Id. At 86-87.

The Court finds this reasoning persuasive as applied to District of Columbia [where this suit was filed] attachment law as well.  The ccTLDs exist only as they are made operational by the ccTLD managers that administer the registries of second level domain names within them and by the parties that cause the ccTLDs to be listed on the root zone file.  A ccTLD, like a domain name, cannot be conceptualized apart from the services provided by these parties.  The Court cannot order plaintiffs' insertion into this arrangement.  Cf. United States ex rel. Global Bldg. Supply, Inc. v. Harkins Builders, Inc., 45 F.3d 830, 833 (4th Cir. 1995) (holding that "where the property is in the form of a contract right, the judgment creditor does not 'step into the shoes' of the judgment debtor and become a party to the contract, but merely has the right to hold the garnishee liable for the value of that contract right").

While interpretations of the DC Code are sparse, they tend to support this understanding of ccTLDs.  The District of Columbia Court of Appeals has held that "money payable upon a contingency or condition is not subject to garnishment until the contingency has happened or the condition has been fulfilled." Cummings Gen. Tire Co. v. Volpe Constr. Co., 230 A.2d 712, 713 (DC 1967).  Thus, payments under a contract that are conditioned upon completion of the work contracted for are not subject to garnishment because the "existence and amount" of the debt is "contingent and uncertain." Id. While this suit does not squarely fit within the rule articulated by the court in Cummings General Tire, that rule does illuminate the fact that courts may not, through garnishment proceedings, insert a judgment creditor into an ongoing contractual arrangement that necessarily requires continued work or service to have value.  Here, the ccTLDs only have value because they are operated by ccTLD managers and because they are connected to computers around the world through the root zone. DC law does not allow their attachment.
 Stern v. The Islamic Republic of Iran, Civil No. 00-2602 (DCDC Nov. 10, 2014).  See also ICANN's legal filings.

Tuesday, November 11, 2014

Internet Regulation in 2020

The Duke Law Center for Innovation Policy (CIP) sponsored a conference on October 17, 2014 to discuss the future of internet regulation.

Vint Cerf Key Note

Paul de Sa, Sharon Gillett & William Lehr

Tim Berners-Lee, kc claffy, Henning Schulzrinne & Daniel Weitzner

Jonathan Sallet

Sunday, November 02, 2014

1998, Nov. 2: Morris Worm Unleashed on Internet

"In the fall of 1988, Morris was a first-year graduate student in Cornell University's computer science Ph.D. program. Through undergraduate work at Harvard and in various jobs he had acquired significant computer experience and expertise. When Morris entered Cornell, he was given an account on the computer at the Computer Science Division. This account gave him explicit authorization to use computers at Cornell. Morris engaged in various discussions with fellow graduate students about the security of computer networks and his ability to penetrate it.



Morris Internet Worm Source Code by Go Boston Card
"In October 1988, Morris began work on a computer program, later known as the Internet "worm" or "virus." The goal of this program was to demonstrate the inadequacies of current security measures on computer networks by exploiting the security defects that Morris had discovered. The tactic he selected was release of a worm into network computers. Morris designed the program to spread across a national network of computers after being inserted at one computer location connected to the network. Morris released the worm into Internet, which is a group of national networks that connect university, governmental, and military computers around the country. The network permits communication and transfer of information between computers on the network.

"Morris sought to program the Internet worm to spread widely without drawing attention to itself. The worm was supposed to occupy little computer operation time, and thus not interfere with normal use of the computers. Morris programmed the worm to make it difficult to detect and read, so that other programmers would not be able to "kill" the worm easily. Morris also wanted to ensure that the worm did not copy itself onto a computer that already had a copy. Multiple copies of the worm on a computer would make the worm easier to detect and would bog down the system and ultimately cause the computer to crash. Therefore, Morris designed the worm to "ask" each computer whether it already had a copy of the worm. If it responded "no," then the worm would copy onto the computer; if it responded "yes," the worm would not duplicate. However, Morris was concerned that other programmers could kill the worm by programming their own computers to falsely respond "yes" to the question. To circumvent this protection, Morris programmed the worm to duplicate itself every seventh time it received a "yes" response. As it turned out, Morris underestimated the number of times a computer would be asked the question, and his one-out-of-seven ratio resulted in far more copying than he had anticipated. The worm was also designed so that it would be killed when a computer was shut down, an event that typically occurs once every week or two. This would have prevented the worm from accumulating on one computer, had Morris correctly estimated the likely rate of reinfection.

"Morris identified four ways in which the worm could break into computers on the network: (1) through a "hole" or "bug" (an error) in SEND MAIL, a computer program that transfers and receives electronic mail on a computer; (2) through a bug in the "finger demon" program, a program that permits a person to obtain limited information about the users of another computer; (3) through the "trusted hosts" feature, which permits a user with certain privileges on one computer to have equivalent privileges on another computer without using a password; and (4) through a program of password guessing, whereby various combinations of letters are tried out in rapid sequence in the hope that one will be an authorized user's password, which is entered to permit whatever level of activity that user is authorized to perform.

"On November 2, 1988, Morris released the worm from a computer at the Massachusetts Institute of Technology. MIT was selected to disguise the fact that the worm came from Morris at Cornell. Morris soon discovered that the worm was replicating and reinfecting machines at a much faster rate than he had anticipated. Ultimately, many machines at locations around the country either crashed or became "catatonic." When Morris realized what was happening, he contacted a friend at Harvard to discuss a solution. Eventually, they sent an anonymous message from Harvard over the network, instructing programmers how to kill the worm and prevent reinfection. However, because the network route was clogged, this message did not get through until it was too late. Computers were affected at numerous installations, including leading universities, military sites, and medical research facilities. The estimated cost of dealing with the worm at each installation ranged from $200 to more than $53,000.

"Morris was found guilty, following a jury trial, of violating 18 U.S.C. Section 1030(a)(5)(A). He was sentenced to three years of probation, 400 hours of community service, a fine of $10,050, and the costs of his supervision."
- U.S. v. Morris, 928 F.2d 504 (2nd Cir. 1991)

See more at Cybertelecom :: Morris Worm

Friday, October 03, 2014

America Income Life Ins Co v Google NDAL :: Dismissed Per Sec. 230(c) :: Case Summary

AMERICAN INCOME LIFE INSURANCE COMPANY v. GOOGLE, INC., Dist. Court, ND Alabama 2014

Facts Plaintiffs American Income Life Insurance Company and Scott Sonnenberg (collectively "plaintiffs") filed this action in the Circuit Court of Jefferson County, Bessemer Division, against Google and "X and Y, fictitious parties operating websites Google, Inc., chooses to reward with prominent placement in all its search engine results, known only to Plaintiff[s] as operators of `pissedconsumer.com' and `scam.com.'" Specifically, plaintiffs allege: The Fictitious Defendants' banners and content, broadcast via Defendant Google, Inc.'s search engine throughout Alabama, via hundreds of thousands of computer terminals, violates the Alabama Deceptive Trade Practices Act by falsely asserting that "American Income Life is a Scam."

Cause of Action: The substance of plaintiffs' Complaint is that certain business practices by defendants violate the Alabama Deceptive Trade Practices Act. Defendant moves to dismiss pursuant to 47 U.S.C. § 230(c), The Good Samaritan Provision of the Communications Decency Act.

Rule: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. § 230(c)(1).

Analysis "Google cannot be held liable for search results that yield content created by a third party."

[T]he only allegations in the Complaint about actions taken by Google in support of the conclusory allegation that Google "intentionally disparaged the goods, services, or business of Plaintiff by false and/or misleading representations of fact" are that Google "offer[s] dozens of product and services, including various forms of advertising and web applications," "determine[s] which [web pages] offer `content of value,'" "assess[es] the importance of every web page," "touts its patented `Page Rank' algorithm," "analyze[s] which sites are the `best sources of information across the web' for its seller-assisted marketing plan," "afford[s] prominent placement in its search engine broadcasting to the Fictitious Defendants," and "broadcast[s]" the "fictitious defendants' banners and content." After careful review of the Complaint, the court finds that plaintiffs clearly allege that Google is an interactive computer service, but not an information content provider because there are no allegations that Google originated, developed, or modified the disputed content. Instead, the face of the Complaint alleges that Google assesses the value of content across the internet and "broadcasts" the content provided by scam.com and pissedconsumer.com via its search engine. Without allegations that Google creates the disputed information, specifically the alleged false and misleading representations, plaintiffs' efforts to treat Google as the publisher of those representations fail under § 230. See [47 U.S.C.] § 230(f)(3).

The Complaint contains no allegation that Google created any content that represented American Income Life as a scam. Although the gripe sites's content was broadcast and/or returned as a result of keyword searches of "American Income Life" on Google's website, the Complaint does not allege that Google created or otherwise developed any content stating that American Income Life is a scam.

Thursday, October 02, 2014

Ugh! No! Trademarking a Few Letters Does Not Mean Any Domain Name Using Those Letters is a Cybersquatter!

In Plaintiff's corner we have Deckers Outdoor Corporation which sells footwear under its UGG brand. In Defendant's corner we have Ozwear, an Australian company that sells sheepskin footwear, and has the domain names ozwearuggs.com and ozwearuggs.com.au. Plaintiff alleges, among other things, that Defendant is a cybersquatter.

Defendant has not responded and one of the things that is interesting about this case is that Plaintiff moves for default judgment. It is interesting because, even though Defendant did not appear, Plaintiff loses!

There are a couple of problems with Plaintiff's cybersquatter claim. As we know, in order to make out a cause of action for cybertsquatting, Plaintiff must
show that 1) Defendants have or had a "bad faith intent to profit from that mark" and 2) "registers, traffics in, or uses a domain name that" is identical or confusingly similar to a mark that was "distinctive" or "famous" at the time of registration of the domain name, or causes dilution of a mark that was famous at the time of the domain name's registration. 15 U.S.C. § 1125(d)(1)(A).
Plaintiff's trademark is three letters: "UGG." Defendant's domain name contains its own name "ozwear" plus those three letters "ugg" plus an "s."

And here's a problem. The term "uggs" is generic for sheepskin boots ~ while "UGG" itself is not generic but is Plaintiff's distinctive trademark.

So if I add an "s" to a distinctive trademark, is it no longer a trademark? Maybe. If adding an "s" turns a distinctive trademark into a generic term, then the trademark owner has a problem. For instance, notes the court, if "CHIP" is a distinctive trademark and you add "s" to make "chips" ~ then the trademark owner don't own every domain name that has "chips" in it.

Plus, notes the court, Defendant uses its own name in the domain name attached to "uggs" to make quite clear that the consumer is not going to Plaintiff's Decker's website but to Defendant Ozwear's website.
After reviewing Plaintiff's allegations, the Court finds that Plaintiff does not allege sufficient facts to show that Defendants' use of the term "uggs" in Defendants' domain names is "confusingly similar" to Plaintiff's UGG Trademark. Plaintiff also does not allege sufficient facts to show that the term "uggs" in Defendants' domain names dilutes Plaintiff's famous UGG mark.
Even in a default judgment case, Plaintiff loses. Tip O' The Hat to the Judge on this one.

Joseph v. Amazon.com, WDWA :: Dismissed per Sec. 230(c) :: Case Summary

Joseph v. Amazon. com, Inc., Dist. Court, WD Washington 2014 (granting Defendant's motion to dismiss based on 47 U.S.C. 230(c), Good Samaritan Provision of the Communications Decency Act).*

Dr. Rhawn Joseph, Ph.D., proceeding pro se, brings this action against Amazon.com, Inc. ("Amazon") and its CEO Jeff Bezos. … Dr. Joseph is an "author and science book publisher" who has sold his books online through Amazon`s website. He relies on "print on demand" ("POD") technology to print the books he sells.

Dr. Joseph filed this putative class action lawsuit on December 10, 2012 in the Northern District of California. …Plaintiff also alleges that Amazon regularly "publishes and copyrights defamatory and libelous statements about competitors including Plaintiff." He argues in his Complaint and briefing that Amazon is responsible for reviews that he believes to be defamatory, though the allegations are scattered and unclear.

D. Plaintiff's State-Law Defamation and Libel Claims are Barred by Section 230 of the CDA

As the Court understands the Complaint, Plaintiff alleges that Amazon unlawfully published defamatory anonymous reviews of Plaintiff`s books (and Plaintiff) on its website. Amazon argues in its opposition and cross-motion that Dr. Joseph`s claim fails as a matter of law because (i) Amazon is protected from liability under the Communications Decency Act of 1996, 47 U.S.C. § 230, for statements made by reviewers on its website; and (2) the alleged statements are all matters of opinion and are thus not actionable. Upon review, the Court agrees that Section 230 immunity bars Dr. Joseph`s claim against Defendants. Amazon and Mr. Bezos are entitled to judgment on the pleadings on this claim, or in the alternative, summary judgment.

Section 230 of the Communications Decency Act ("CDA") "immunizes providers of interactive computer services against liability arising from content created by third parties." Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008) (en banc); Carafano v. Metrosplash.com, 339 F.3d 1119, 1122 (9th Cir. 2003). The statute provides that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. § 230(c)(1). Ultimately, a defendant is entitled to § 230 protection as long as (1) it is a provider or user of an "interactive computer service," (2) the asserted claims "treat the defendant as a publisher or speaker of information," and (3) the challenged communication is "information provided by another content provider." Batzel v. Smith, 333 F.3d 1018, 1037 (9th Cir. 2003).

Amazon is entitled to § 230`s protection from Plaintiff`s defamation/libel/slander/trade libel claim. Amazon constitutes an "interactive service provider," which the CDA defines as a provider of an information service or system that "enables computer access by multiple users to a computer server." 47 U.S.C. § 230(f)(2); see Corbis Corp. v. Amazon.com, Inc., 351 F.Supp.2d 1090, 1118 (W.D. Wash. 2004) (no dispute that Amazon is an interactive service provider for CDA purposes); Schneider v. Amazon, 108 Wn.App. 454, 463 (Wash. 2001) (finding Amazon to be an interactive service provider and entitled to immunity from claims based on defamatory reviews by third parties). Plaintiff`s Complaint alleges that Amazon operates a website that allows consumers to purchase items online, i.e., to access Amazon`s servers by placing orders and browsing its online store. (See Dkt. No. 1 at ¶ 5.) Second, Dr. Joseph`s claim, whether labeled as a defamation, libel, slander or trade libel cause of action, faults Amazon for acting as the publisher of the reviews. (See, e.g., Dkt. Nos. 1 at ¶ 60 ("Amazon published, copyrighted and claimed ownership" of the allegedly libelous statements); 43 at ¶ 85 ("The above are just a few examples of anonymous[,] defamatory, libelous reviews published by the Defendants."). The CDA`s express terms preclude him from treating Amazon as a publisher or speaker of the information at issue, which is necessary for his state-law claims to succeed. See Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1101 (9th Cir. 2009) (recognizing that "the cause of action most frequently associated with the cases on section 230 is defamation[,]" but explaining that the statute`s protection extends beyond defamation causes of action); Kimzey v. Yelp Inc., ___ F.Supp.2d ___, 2014 WL 1805551 (W.D. Wash. 2014) (unfair business practices, malicious libel, and libel per se claims barred against website that allowed users to post reviews of businesses). Finally, the statements alleged were made by third-party reviewers commenting on Dr. Joseph`s books and videos, and Dr. Joseph himself. (See generally Dkt. Nos. 1 at ¶¶ 25-26, 60; 43 at ¶ 85.) They accordingly constitute "information provided by another content provider" under the CDA`s terms. See 47 U.S.C. § 230(f)(3) (defining "information content provider" as "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service."). In sum, Plaintiff`s claim against Amazon is barred under § 230 of the CDA.

Dr. Joseph counters this inevitable conclusion with a number of arguments. First, he alleges and argues that the CDA does not apply because Amazon makes "editorial" decisions about which product reviews to publish and which to delete. This argument is without merit. The Ninth Circuit has made clear that such editorial acts (even assuming they are true) are protected: "[S]o long as a third-party willingly provides the essential published content, the interactive services provider receives full immunity regardless of the specific editing or selection process." Carofano, 339 F.3d at 1124. Whether the website operator removes certain reviews, publishes others, or alters the content, it is still entitled to CDA immunity, since those activities constitute a publisher`s traditional editorial functions. Roommates.com, 521 F.3d at 1179-80 ("[A]ny activity that can be boiled down to deciding whether to exclude material that third parties seek to post online is perforce immune under section 230."). It is no surprise then that Courts have repeatedly barred similar claims against websites that allow anonymous reviews or other allegedly defamatory content to be posted by third parties. See, e.g., id.; Black v. Google Inc., 457 Fed. Appx. 622 (9th Cir. 2011) (unpublished) (Google not liable for anonymous negative business reviews posted in its online business directory); Kimzey, 2014 WL 1805551, at *2-3 (Yelp! website entitled to CDA immunity from claims based on reviews posted on its site).

Dr. Joseph also argues that Amazon is the "owner" of statements because it "copyrights" them after they are posted. As Defendants' point out, this argument appears to be factually incorrect—Amazon`s standard Conditions of Use expressly state that customers posting reviews own the content and merely grant Amazon a license to use it—and in any event, is unpersuasive as a legal argument because Dr. Joseph still alleges nothing more than Amazon`s fault for publishing content first created and posted by third-parties. On a different note, Plaintiff argues that CDA cannot apply because the reviews make defamatory statements about him as a person rather than about his books. Such an argument is without merit. The essential elements of CDA immunity do not turn on the substance of the alleged statements, but rather, on the party who is allegedly liable for them and whether that party must be deemed a "publisher" to incur liability. See, e.g., Gavra v. Google Inc., Case No. C12-6547, 2013 WL 3788241, at *2-3 (N.D. Cal. July 17, 2013) (claims based on allegedly defamatory videos about other individuals posted on YouTube barred under § 230).

Finally, Dr. Joseph implies that the individuals who posted the allegedly defamatory and libelous statements about him online were "directly associated with the Defendants and may be an employee of Amazon." (Dkt. No. 1 at ¶ 71.C.) This argument fails for a number of reasons. First, Dr. Joseph`s Complaint itself contains insufficient allegations to support a conclusion that Amazon authored any content. Plaintiff relies on nothing more than "mere speculation" to allege that some unidentified Amazon employee might have authored the negative commentary about him without explaining why or how that might be the case. Such allegations are wholly insufficient to avoid § 230`s reach. See, e.g., Levitt v. Yelp! Inc., Case No. C10-1321, 2011 WL 5079526, at *2 (N.D. Cal. Oct. 26, 2011) (rejecting similarly speculative assertions that unidentified Yelp employees authored allegedly defamatory reviews). Additionally, even if the Court accepted this conclusory allegation as sufficient, summary judgment against Plaintiff would be warranted because he provides absolutely no evidence to support his assertion that any Amazon employee posted the reviews at issue. On the other hand, Amazon has provided a sworn declaration clarifying that Amazon neither creates nor controls the content of any third-party reviews, except that it reserves the right to delete reviews that violate its published policies. That alone would be sufficient to justify summary judgment for Amazon.

In sum, the Court concludes that Amazon is entitled to § 230 immunity for Plaintiff`s "libel/defamation/slander/trade libel" claim.



* The case involved several causes of action. Cybertelecom focuses only on the federal internet causes of action.

Monday, August 11, 2014

FCC RFC :: Eligible Services List for Schools and Libraries USF

Released:  08/04/2014.  WIRELINE COMPETITION BUREAU SEEKS COMMENT ON DRAFT ELIGIBLE SERVICES LIST FOR SCHOOLS AND LIBRAIRES UNIVERSAL SERVICE PROGRAM. (DA No.  14-1130). (Dkt No 02-6 09-51 13-184 ). Comments Due:  09/03/2014. Reply Comments Due:  09/18/2014.  WCB . https://apps.fcc.gov/edocs_public/attachmatch/DA-14-1130A1.docx
https://apps.fcc.gov/edocs_public/attachmatch/DA-14-1130A1.pdf
https://apps.fcc.gov/edocs_public/attachmatch/DA-14-1130A1.txt


The Wireline Competition Bureau (Bureau) seeks comment on a draft eligible services list (ESL) for the schools and libraries universal support mechanism (also known as the E-rate program) for funding year 2015.[1]  In the E-rate Modernization Order, among other things, the Commission restructures the ESL into category one and category two services, streamlines the list of eligible internal connections components to focus support on those services and components needed for broadband connectivity within schools and libraries, and eliminates other services and components beginning in funding year 2015.[2]  The draft ESL we release with this public notice implements the changes required by the E-rate Modernization Order.  We seek comment on the draft ESL for funding year 2015.  Commenters should highlight whether the draft manifests the Commission’s decisions and intent in the E-rate Modernization Order, and to the extent that they find additional changes are necessary, we encourage commenters to be as detailed as possible with their recommendations.  The following summarizes the changes we propose....

FCC RFC :: 10th Sec. 706 NOI

TENTH INQUIRY CONCERNING THE DEPLOYMENT OF ADVANCED TELECOMMUNICATIONS CAPABILITY TO ALL AMERICANS IN A REASONABLE AND TIMELY FASHION, AND POSSIBLE STEPS TO ACCELERATE SUCH DEPLOYMENT PURSUANT TO SECTION 706 OF THE TELECOMMUNICATIONS ACT OF 1996.   Initiated the Commission's assessment of whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion, and solicited data and information that will help the Commission make this determination. (Dkt No.  14-126 ). Action by:  the Commission. Comments Due:  09/04/2014. Reply Comments Due:  09/19/2014. Adopted:  08/01/2014 by NOI. (FCC No. 14-113).  WCB  https://apps.fcc.gov/edocs_public/attachmatch/FCC-14-113A1.docx
https://apps.fcc.gov/edocs_public/attachmatch/FCC-14-113A2.docx
https://apps.fcc.gov/edocs_public/attachmatch/FCC-14-113A3.docx
https://apps.fcc.gov/edocs_public/attachmatch/FCC-14-113A4.docx
https://apps.fcc.gov/edocs_public/attachmatch/FCC-14-113A1.pdf
https://apps.fcc.gov/edocs_public/attachmatch/FCC-14-113A2.pdf
https://apps.fcc.gov/edocs_public/attachmatch/FCC-14-113A3.pdf
https://apps.fcc.gov/edocs_public/attachmatch/FCC-14-113A4.pdf
https://apps.fcc.gov/edocs_public/attachmatch/FCC-14-113A1.txt
https://apps.fcc.gov/edocs_public/attachmatch/FCC-14-113A2.txt
https://apps.fcc.gov/edocs_public/attachmatch/FCC-14-113A3.txt
https://apps.fcc.gov/edocs_public/attachmatch/FCC-14-113A4.txt

INTRODUCTION


1.              Section 706 of the Telecommunications Act of 1996, as amended (1996 Act), requires the Commission to determine and report annually on “whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion.”[1]  This Notice of Inquiry (Inquiry) initiates the Commission’s assessment of the “availability of advanced telecommunications capability to all Americans (including, in particular, elementary and secondary schools and classrooms).”[2]  In conducting this Inquiry, the Commission must “determine whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion” and, if the answer is negative, the Commission “shall take immediate action to accelerate deployment of such capability” through a variety of means.[3]  In this Inquiry, we solicit data and information that will help the Commission make this determination. 
2.              On August 21, 2012, the Commission released the Ninth Broadband Progress Notice of Inquiry.[4]  We asked questions in the Ninth Broadband Progress Notice of Inquiry and have not issued a corresponding report.[5]  To what extent do those questions remain relevant or need to be resolved?  Since that last inquiry, there have been numerous noteworthy developments in the broadband market and the Commission has continued to take significant steps to accelerate the deployment of modern communications networks.  For example, since the last report, the Commission has implemented a second round of Phase I of the Connect America Fund to promote the deployment of broadband-capable infrastructure and more than $438 million in funding has been disbursed, which will bring new broadband service to more than 1.6 million unserved Americans in the next several years.[6] 
3.              With this Inquiry, we start anew by analyzing current data and seeking information that will enable the Commission to conduct an updated analysis for purposes of its next report.  In particular, we seek comment on the benchmarks we should use to define “advanced telecommunications capability,” explore whether we should establish separate benchmarks for fixed and mobile services, which data we should rely on in measuring broadband, whether and how we should take into account differences in broadband deployment, particularly between urban areas versus non-urban and Tribal areas, and other issues.  We seek comment on whether we should modify the 4 megabits per second (Mbps) download and 1 Mbps upload (4 Mbps/1 Mbps) speed benchmark we have relied on in the past reports.  We also seek comment on whether we should consider latency and data usage allowances as additional core characteristics of advanced telecommunications capability.[7]
We seek comment on how to address mobile and satellite services data in our section 706 report and on ways to improve the evaluation of mobile and satellite services data.  We also seek comment on whether we should establish separate benchmarks for fixed and mobile services, and under what circumstances mobile services may itself satisfy the definition of advanced telecommunications capability and therefore serve as a functional equivalent for fixed broadband that satisfies the definition.  For areas where multiple providers have deployed service but none of the services, standing alone, satisfies the broadband benchmark, how (if at all) should we evaluate that deployment for our determination under section 706?  Finally, we seek comment on how to improve our analysis concerning broadband availability at elementary and secondary schools.  We encourage parties to provide any information that might be useful in our evaluation of broadband availability and welcome innovative ideas on how the Commission can best increase and accelerate broadband availability throughout the nation.  We welcome input on all matters relevant to this Inquiry, and seek information on the specific issues set forth below.