Expectations remained unclear Monday for the outcome of the NARUC Telecom Committee’s expected vote on a net neutrality resolution. The resolution, introduced by committee member and Vermont Public Service Board member John Burke, would encourage the FCC to use the Telecom Act’s Title II and Section 706 as the jurisdictional basis as it creates new net neutrality rules (CD July 14 p6). Burke told us Monday the staff subcommittee on telecom had given a positive reception to the resolution over the weekend, but he was unsure how the full Telecom Committee would act. NARUC General Counsel Brad Ramsay said industry representatives could comment Tuesday, before the committee votes. Burke told us he expects opposition from many of those representatives. Several Telecom Committee members told us Monday they were undecided on their position. Pennsylvania Public Utility Commissioner James Cawley said he was “genuinely not sure” how he would vote. District of Columbia Public Service Commission Chairwoman Betty Ann Kane said she needed to review revisions to the original resolution before she decided. Telecom Committee Vice Chairwoman Catherine Sandoval, a member of the California Public Utilities Commission, declined to comment on her position.
DALLAS -- Parties within state utility commissions and elsewhere opposed to the 10th U.S. Circuit Court of Appeals’ decision upholding the FCC 2011 USF/intercarrier compensation order (CD May 27 p1 ) should continue exploring options for appealing that decision even though available options have a low probability of succeeding, industry panelists said at the NARUC meeting. Those options include requesting an en banc review by the entire 10th Circuit or an appeal to the Supreme Court, said NARUC Counsel Brad Ramsay.
NARUC is set to wade into the net neutrality debate at its meeting this week in Dallas, where its board will consider a resolution that would encourage the FCC to use the Telecom Act Title II and Section 706 as jurisdictional bases as it creates new net neutrality rules. The resolution would also lend NARUC support to the FCC’s proposed expansion of the transparency rule, said a draft of the resolution released in advance of the meeting (http://bit.ly/1sI9XiF).
CenturyLink opposed the FCC plan to analyze the telco’s petition for forbearance of dominant carrier and computer inquiry tariffing requirements on enterprise broadband services for market competitiveness using what the commission calls a “traditional market power framework” (http://bit.ly/1n88UTO). The proposed market analysis plan would analyze CenturyLink’s forbearance petition based on different geographic areas for different customer classes, like small and medium-sized businesses versus large enterprise customers (http://bit.ly/VYmZxY). CenturyLink had proposed that the FCC evaluate market competitiveness based on a nationwide geographic market. AT&T also opposed the FCC’s proposed plan. Comptel, Sprint and a group of CLECs of Cbeyond Communications, Integra Telecom, Level 3 and tw telecom supported the FCC plan. Comments were due Monday, while reply comments are due July 14, in docket 14-9.
The Senate Intelligence Committee cleared the Cybersecurity Information Sharing Act (CISA) Tuesday on a 12-3 vote after a closed markup. The bill is widely seen as an analogue to the House-passed Cyber Intelligence Sharing and Protection Act (HR-624) that includes more stringent privacy protections. Privacy groups have criticized CISA, despite those additional privacy protections (CD June 26 p8). Sens. Mark Udall, D-Colo., and Ron Wyden, D-Ore., said in a joint statement that they were two of the votes against CISA. The bill “lacks adequate protections for the privacy rights of law-abiding Americans, and that it will not materially improve cybersecurity,” they said. A revised version of the bill in the form of a manager’s amendment included what the committee said were strengthened privacy protections and clarifications to authorization language. Senate Intelligence approved an amendment from Sen. Martin Heinrich, D-N.M., that would require the attorney general to determine a “specific limitation” on how long federal agencies can retain cyber threat information shared under CISA. The committee adopted three amendments from Sen. Susan Collins, R-Maine. One amendment would allow cyberthreat information sharing for the “protection of minors,” while another would require the actions performed under the bill to conform with the Fair Information Practice Principles included in President Barack Obama’s cybersecurity strategy. The third Collins amendment would allow the Department of Defense to share cyberthreat information it receives from defense contractors. Senate Intelligence approved an amendment from Sen. James Risch, R-Idaho, that would include national laboratories among the federal agencies the director of national intelligence must consult during development of procedures for government information sharing with the private sector. The committee also approved an amendment from Sen. Mark Warner, D-Va., requiring the director of national intelligence to submit a report to Congress on cyberintelligence cooperation. Senate Intelligence said it will release the full text of the marked up version of CISA later this week.
A recent split among 11 Utah cities participating in the Utah Telecommunication Open Infrastructure Agency’s financially troubled municipal broadband network regarding whether to partner with Macquarie Capital to build out the network leaves UTOPIA with an unclear future, participants and municipal broadband advocates told us. Only six of the 11 active UTOPIA member cities voted in late June to continue working with Macquarie on a partnership: Brigham City, Layton, Midvale, Perry, Tremonton and West Valley City. The five cities that voted against the Macquarie proposal were Centerville, Lindon, Murray, Orem and Payson, UTOPIA said. Macquarie’s proposed 30-year partnership with UTOPIA has been controversial, drawing opposition earlier this year in the Utah State Senate before getting a reprieve from lawmakers (CD Feb 25 p7).
The Senate Intelligence Committee said it expects to mark up the Cybersecurity Information Sharing Act (CISA) Tuesday, moving ahead with the bill after it delayed consideration in late June. Privacy advocates and industry lobbyists told us Monday they expect CISA will clear Senate Intelligence but that other factors will determine how far it advances beyond that point. The markup, closed to the public, is to begin at 2:30 p.m. in 219 Hart.
The Senate Intelligence Committee is set to mark up the Cybersecurity Information Sharing Act (CISA) Thursday, but expectations about the result of that markup remain unclear even after months of behind-the-scenes revisions. The markup, closed to the public, is set to begin at 2:30 p.m. in Hart 219.
The FCC has at least some legal authority to justify its expanded focus on cybersecurity risk management in the communications sector, which parallels other agencies’ efforts to implement President Barack Obama’s 2013 executive order on the topic (CD Feb 14/13 p1), former FCC officials and industry observers told us. FCC Chairman Tom Wheeler has strongly advocated industry leadership of work to improve the sector’s cybersecurity, saying in a speech at the American Enterprise Institute (AEI) earlier this month that he’s seeking private sector participation but the FCC is prepared to regulate the issue if that fails (CD June 13 p1).
The Supreme Court unanimously ruled Thursday against financial software firm Alice, saying that “the mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent eligible invention” (http://1.usa.gov/1lChQWR). The court affirmed a ruling at the U.S. Court of Appeals for the Federal Circuit that Alice couldn’t assert four of its patents on financial software against CLS Bank International because they were abstract. The case drew amicus briefs from multiple industry giants -- including Amazon, Facebook, Google, IBM, Microsoft, Netflix, Verizon and Twitter -- that mostly favored CLS Bank. The ruling, long expected to favor CLS Bank (CD April 1 p14), does not offer a clear delineation of what constitutes an abstract idea, experts told us. The Alice ruling does not constitute a wholesale rejection of abstract ideas’ patentability, but that the simple use of a computer to perform an abstract idea would “add nothing of substance to the underlying abstract idea,” Justice Clarence Thomas wrote in the court’s opinion. Had the court ruled otherwise, “an applicant could claim any principle of the physical or social sciences by reciting a computer system configured to implement the relevant concept,” the opinion said. “We tread carefully in construing this exclusionary principle lest it swallow all of patent law.” Inventions that involve transforming abstract ideas “’to a new and useful end'” remain patentable, the court said. Microsoft, which had favored a narrow Supreme Court ruling, praised the court in a statement for having “distinguished the Alice patent from software inventions.” The Supreme Court “went the right way” in its ruling, and “that they went unanimously the right way is a great sign,” said Matt Levy, Computer & Communications Industry Association patent counsel. CCIA also filed an amicus brief siding with CLS Bank. The court’s ruling reaffirms its previous precedent in Mayo v. Prometheus that abstract ideas aren’t patentable and extends that into the software sector, he said. “It might have been nice if they were able to give a more detailed test, but I understand why they didn’t,” Levy said. “As with any Supreme Court decision, the devil is going to be in the implementation details by the district courts and the Federal Circuit.” Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor issued a short concurring opinion that appears to advocate for invalidating all business method patents, he said. The Alice ruling will likely eventually invalidate “the majority of all software patents in force today,” said Durie Tangri patent lawyer Mark Lemley. “You can patent particular improvements in computers, but you can’t patent using a computer or the Internet to implement your idea.” Lemley filed an amicus brief in Alice on behalf of a group of companies that included LinkedIn, Netflix, Rackspace, Twitter and Yelp (http://bit.ly/SWERXO), but noted he was not speaking to us on behalf of those companies. The ruling is likely to have the greatest impact on the Patent and Trademark Office’s Patent Trial and Appeal Board, where it had already “become much easier” to challenge patent eligibility with the implementation of the America Invents Act, said Miles & Stockbridge patent lawyer James Carmichael, former administrative patent judge at PTAB. “This is going to be a great sword in the quiver of patent challengers wanting to cancel patents at PTAB.”