712: Kalette

Adam Curry & John C. Dvorak

3h 3m
April 12th, 2015
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Executive Producers: Stephen Berkowitz, Markybhoy, Ryan Jones

Associate Executive Producers: Sir Wire of the Hidden Jewell, Dave Boseman, Jamie Graham, Sir Christopher Dolan

Cover Artist: 20wattbulb

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Woodstock
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Vegas
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Bill Hudec auto backup recorder
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Fletcher Jetta red light runner karma
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Amazon Now
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No Agenda the hit Broadway Musical
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Congressional Dish on The Stream
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Theodore Kasczinski "Industrial Society and Its Future"
Smith Mundt Act - A reminder that you are living in a Smith-Mudt Act repealed media landscape
NDAA and Overturning of Smith-Mundt Act
The National Defense Authorization Act for Fiscal Year 2013 (NDAA) allows for materials produced by the State Department and the Broadcasting Board of Governors (BBG) to be released within U.S. borders and strikes down a long-time ban on the dissemination of such material in the country.[14][15][16]
Propaganda in the United States - Wikipedia, the free encyclopedia
Sun, 21 Sep 2014 15:00
Propaganda in the United States is propaganda spread by government and media entities within the United States. Propaganda is information, ideas, or rumors deliberately spread widely to influence opinions. Propaganda is not only in advertising; it is also in radio, newspaper, posters, books, and anything else that might be sent out to the widespread public.
Domestic[edit]World War I[edit]The first large-scale use of propaganda by the U.S. government came during World War I. The government enlisted the help of citizens and children to help promote war bonds and stamps to help stimulate the economy. To keep the prices of war supplies down, the U.S. government produced posters that encouraged people to reduce waste and grow their own vegetables in "victory gardens." The public skepticism that was generated by the heavy-handed tactics of the Committee on Public Information would lead the postwar government to officially abandon the use of propaganda.[1]
World War II[edit]During World War II the U.S. officially had no propaganda, but the Roosevelt government used means to circumvent this official line. One such propaganda tool was the publicly owned but government funded Writers' War Board (WWB). The activities of the WWB were so extensive that it has been called the "greatest propaganda machine in history".[1]Why We Fight is a famous series of US government propaganda films made to justify US involvement in World War II.
In 1944 (lasting until 1948) prominent US policy makers launched a domestic propaganda campaign aimed at convincing the U.S. public to agree to a harsh peace for the German people, for example by removing the common view of the German people and the Nazi party as separate entities.[2] The core in this campaign was the Writers' War Board which was closely associated with the Roosevelt administration.[2]
Another means was the United States Office of War Information that Roosevelt established in June 1942, whose mandate was to promote understanding of the war policies under the director Elmer Davies. It dealt with posters, press, movies, exhibitions, and produced often slanted material conforming to US wartime purposes. Other large and influential non-governmental organizations during the war and immediate post war period were the Society for the Prevention of World War III and the Council on Books in Wartime.
Cold War[edit]During the Cold War, the U.S. government produced vast amounts of propaganda against communism and the Soviet bloc. Much of this propaganda was directed by the Federal Bureau of Investigation under J. Edgar Hoover, who himself wrote the anti-communist tract Masters of Deceit. The FBI's COINTELPRO arm solicited journalists to produce fake news items discrediting communists and affiliated groups, such as H. Bruce Franklin and the Venceremos Organization.
War on Drugs[edit]The National Youth Anti-Drug Media Campaign, originally established by the National Narcotics Leadership Act of 1988,[3][4] but now conducted by the Office of National Drug Control Policy under the Drug-Free Media Campaign Act of 1998,[5] is a domestic propaganda campaign designed to "influence the attitudes of the public and the news media with respect to drug abuse" and for "reducing and preventing drug abuse among young people in the United States".[6][7] The Media Campaign cooperates with the Partnership for a Drug-Free America and other government and non-government organizations.[8]
Iraq War[edit]In early 2002, the U.S. Department of Defense launched an information operation, colloquially referred to as the Pentagon military analyst program.[9] The goal of the operation is "to spread the administrations's talking points on Iraq by briefing ... retired commanders for network and cable television appearances," where they have been presented as independent analysts.[10] On 22 May 2008, after this program was revealed in the New York Times, the House passed an amendment that would make permanent a domestic propaganda ban that until now has been enacted annually in the military authorization bill.[11]
The Shared values initiative was a public relations campaign that was intended to sell a "new" America to Muslims around the world by showing that American Muslims were living happily and freely, without persecution, in post-9/11 America.[12] Funded by the United States Department of State, the campaign created a public relations front group known as Council of American Muslims for Understanding (CAMU). The campaign was divided in phases; the first of which consisted of five mini-documentaries for television, radio, and print with shared values messages for key Muslim countries.[13]
NDAA and Overturning of Smith-Mundt Act[edit]The National Defense Authorization Act for Fiscal Year 2013 (NDAA) allows for materials produced by the State Department and the Broadcasting Board of Governors (BBG) to be released within U.S. borders and strikes down a long-time ban on the dissemination of such material in the country.[14][15][16]
Ad Council[edit]The Ad Council, an American non-profit organization that distributes public service announcements on behalf of various private and federal government agency sponsors, has been labeled as "little more than a domestic propaganda arm of the federal government" given the Ad Council's historically close collaboration with the President of the United States and the federal government.[17]
International[edit]Through several international broadcasting operations, the US disseminates American cultural information, official positions on international affairs, and daily summaries of international news. These operations fall under the International Broadcasting Bureau, the successor of the United States Information Agency, established in 1953. IBB's operations include Voice of America, Radio Liberty, Alhurra and other programs. They broadcast mainly to countries where the United States finds that information about international events is limited, either due to poor infrastructure or government censorship. The Smith-Mundt Act prohibits the Voice of America from disseminating information to US citizens that was produced specifically for a foreign audience.
During the Cold War the US ran covert propaganda campaigns in countries that appeared likely to become Soviet satellites, such as Italy, Afghanistan, and Chile.
Recently The Pentagon announced the creation of a new unit aimed at spreading propaganda about supposedly "inaccurate" stories being spread about the Iraq War. These "inaccuracies" have been blamed on the enemy trying to decrease support for the war. Donald Rumsfeld has been quoted as saying these stories are something that keeps him up at night.[18]
Psychological operations[edit]The US military defines psychological operations, or PSYOP, as:
planned operations to convey selected information and indicators to foreign audiences to influence the emotions, motives, objective reasoning, and ultimately the behavior of foreign governments, organizations, groups, and individuals.[19]
The Smith-Mundt Act, adopted in 1948, explicitly forbids information and psychological operations aimed at the US public.[20][21][22] Nevertheless, the current easy access to news and information from around the globe, makes it difficult to guarantee PSYOP programs do not reach the US public. Or, in the words of Army Col. James A. Treadwell, who commanded the U.S. military psyops unit in Iraq in 2003, in the Washington Post:
There's always going to be a certain amount of bleed-over with the global information environment.[23]
Agence France Presse reported on U.S. propaganda campaigns that:
The Pentagon acknowledged in a newly declassified document that the US public is increasingly exposed to propaganda disseminated overseas in psychological operations.[24]
Former US Defense Secretary Donald Rumsfeld approved the document referred to, which is titled "Information Operations Roadmap." [22][24] The document acknowledges the Smith-Mundt Act, but fails to offer any way of limiting the effect PSYOP programs have on domestic audiences.[20][21][25]
Several incidents in 2003 were documented by Sam Gardiner, a retired Air Force colonel, which he saw as information-warfare campaigns that were intended for "foreign populations and the American public." Truth from These Podia,[26] as the treatise was called, reported that the way the Iraq war was fought resembled a political campaign, stressing the message instead of the truth.[22]
See also[edit]References[edit]^ abThomas Howell, The Writers' War Board: U.S. Domestic Propaganda in World War II, Historian, Volume 59 Issue 4, Pages 795 - 813^ abSteven Casey, (2005), The Campaign to sell a harsh peace for Germany to the American public, 1944 - 1948, [online]. London: LSE Research Online. [Available online at http://eprints.lse.ac.uk/archive/00000736] Originally published in History, 90 (297). pp. 62-92 (2005) Blackwell Publishing^National Narcotics Leadership Act of 1988 of the Anti''Drug Abuse Act of 1988, Pub.L. 100''712, 102 Stat. 4181, enacted November 18, 1988^Gamboa, Anthony H. (January 4, 2005), B-303495, Office of National Drug Control Policy '-- Video News Release, Government Accountability Office, footnote 6, page 3 ^Drug-Free Media Campaign Act of 1998 (Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999), Pub.L. 105''277, 112 Stat. 268, enacted October 21, 1998^Gamboa, Anthony H. (January 4, 2005), B-303495, Office of National Drug Control Policy '-- Video News Release, Government Accountability Office, pp. 9''10 ^Drug-Free Media Campaign Act of 1998 of the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, Pub.L. 105''277, 112 Stat. 268, enacted October 21, 1998^Office of National Drug Control Policy Reauthorization Act of 2006, Pub.L. 109''469, 120 Stat. 3501, enacted December 29, 2006, codified at 21 U.S.C. § 1712^Barstow, David (2008-04-20). "Message Machine: Behind Analysts, the Pentagon's Hidden Hand". New York Times. ^Sessions, David (2008-04-20). "Onward T.V. Soldiers: The New York Times exposes a multi-armed Pentagon message machine". Slate. ^Barstow, David (2008-05-24). "2 Inquiries Set on Pentagon Publicity Effort". New York Times. ^Rampton, Sheldon (October 17, 2007). "Shared Values Revisited". Center for Media and Democracy. ^"U.S. Reaches Out to Muslim World with Shared Values Initiative". America.gov. January 16, 2003.
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Podcast Patent
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Episodes vs Segments
Compilation file doesn't have to be at same URI
EFF Transcript of ginal podcasting testimony
Sun, 12 Apr 2015 07:08
Trials@uspto.gov Paper No. 40 571-272-7822 Entered: February 5, 2015 RECORD OF ORAL HEARING UNITED STATES PATENT AND TRADEMARK OFFICE - - - - - - BEFORE THE PATENT TRIAL AND APPEAL BOARD - - - - - - ELECTRONIC FRONTIER FOUNDATION Petitioner vs. PERSONAL AUDIO, LLC Patent Owner - - - - - - Case No. IPR2014-00070 Patent 8,112,504 - - - - - - Oral Hearing Held: December 17, 2014 Before SHERIDAN K. SNEDDEN, TRENTON A. WARD, and GREGG ANDERSON (via video conference), Administrative Patent Judges The above-entitled matter came on for hearing on Wednesday, December 17, 2014 at the U.S. Patent and Trademark Office, 600 Dulany Street, Alexandria, Virginia at 1:00 p.m., in Courtroom A.
2 APPEARANCES: ON BEHALF OF THE PETITIONER: NICHOLAS A. BROWN, ESQ. Greenberg Traurig LLP 4 Embarcadero Center, Suite 3000 San Francisco, CA 94111 415-655-1271 and RICHARD C. PETTUS, ESQ. Greenberg Traurig LLP 200 Park Avenue New York, New York 10166 212-801-9387 ON BEHALF OF THE PATENT OWNER: MICHAEL J. FEMAL, ESQ. Much Shelist, P.C. 191 North Wacker, Suite 1800 Chicago, Illinois 60606-2000 312-521-2768
IPR2014-00070 Patent 8,112,504 3 P R O C E E D I N G S 1 ( 1 : 0 0 p . m . ) 2 J U D G E W A R D : G o o d a f t e r n o o n . W e l c o m e t o t h e 3 P a t e n t T r i a l a n d A p p e a l B o a r d . W e ' r e h e r e t h i s a f t e r n o o n f o r 4 t h e o r a l h e a r i n g f o r i n t e r p a r t e s r e v i e w m a t t e r N u m b e r I P R 5 2014-0 0 0 7 0 . I t i s a n i n t e r p a r t e s r e v i e w p r o c e e d i n g i n w h i c h 6 E l e c t r o n i c F r o n t i e r F o u n d a t i o n i s t h e P e t i t i o n e r a n d P e r s o n a l 7 A u d i o , L L C i s t h e P a t e n t O w n e r . 8 T h e p a n e l f o r t h e h e a r i n g t o d a y i s m y c o l l e a g u e , 9 J u d g e S n e d d e n , s i t t i n g h e r e o n m y r i g h t , m y s e l f , Ju d g e W a r d , 10 a n d a l s o m y c o l l e a g u e , J u d g e A n d e r s o n , w h o i s j o i n i n g u s f r o m 11 o u r s a t e l l i t e o f f i c e i n D e n v e r . J u d g e A n d e r s o n , g o o d m o r n i n g 12 t o y o u . C a n y o u s e e a n d h e a r u s c l e a r l y ? 13 J U D G E A N D E R S O N : I c a n . T h a n k y o u , J u d g e 14 W a r d . 15 J U D G E W A R D : A l l r i g h t . 16 I w o u l d l i k e t o s t a r t b y g e t t i n g a p p e a r a n c e s o f 17 c o u n s e l . W h o d o w e h a v e o n b e h a l f o f P e t i t i o n e r , E l e c t r o n i c 18 F r o n t i e r F o u n d a t i o n ? 19 M R . P E T T U S : M a y i t p l e a s e t h e B o a r d , R i c h a r d 20 P e t t u s o f t h e G r e e n b e r g T r a u r i g l a w f i r m . W i t h m e i s V e r a 21 R a n i e r i o f E l e c t r o n ic F r o n t i e r F o u n d a t i o n a n d m y p a r t n e r , 22 N i c h o l a s B r o w n , w h o w i l l b e p r e s e n t i n g t h e a r g u m e n t . 23 J U D G E W A R D : T h a n k y o u , M r . P e t t u s . A n d w h o 24 d o w e h a v e o n b e h a l f o f t h e P a t e n t O w n e r ? 25
IPR2014-00070 Patent 8,112,504 4 M R . F E M A L : Y e s , m a y i t p l e a s e t h e C o u r t , 1 M i c h a e l J . F e m a l o n b e h a l f o f t h e P a t e n t O w n e r , P e r s o n a l 2 A u d i o . 3 J U D G E W A R D : M r . F e m a l , w e l c o m e t o y o u . 4 I h a v e a f e w a d m i n i s t r a t i v e d e t a i l s I w a n t t o g o o v e r 5 b e f o r e w e g e t s t a r t e d w i t h t h e a r g u m e n t s , p r i m a r i l y t o t a l k 6 a b o u t t h e f o r m a t f o r t h e h e a r i n g . T h e t r i a l h e a r i n g o r d e r t h a t 7 w e e n t e r e d i n t h i s c a s e o n N o v e m b e r 2 8 t h i n s t r u c t e d t h a t t h e 8 p a r t i e s w o u l d e a c h h a v e 4 5 m i n u t e s t o p r e s e n t t h e i r a r g u m e n t s . 9 W e ' r e g o i n g t o f i r s t h e a r f r o m t h e P e t i t i o n e r . 10 P e t i t i o n e r , y o u w i l l p r e s e n t o u r a r g u m e n t s . A n d , M r . F e m a l , 11 t h e P a t e n t O w n e r , w i l l th e n b e a l l o w e d t o r e s p o n d t o p r e s e n t 12 t h e i r a r g u m e n t s . A n d P e t i t i o n e r , i f y o u w i s h t o d o s o , y o u c a n 13 r e s e r v e t i m e f o r r e b u t t a l . J u s t i n d i c a t e h o w m u c h t i m e y o u 14 w a n t a t t h e b e g i n n i n g o f y o u r a r g u m e n t s . 15 O n e a d m i n i s t r a t i v e d e t a i l f o r c o u n s e l . I w a n t t o 16 mak e s u r e t h a t w h e n y o u a r e r e f e r r i n g t o a d e m o n s t r a t i v e s l i d e , 17 p l e a s e m a k e s u r e t o r e f e r t o t h e s l i d e n u m b e r . J u d g e A n d e r s o n 18 a t t e n d i n g r e m o t e l y i n D e n v e r w i l l o n l y b e a b l e t o h e a r y o u 19 w h e n y o u a r e s p e a k i n g i n t o t h e m i c r o p h o n e a n d h e w i l l n o t b e 20 a b l e t o s e e w h a t i s s h o w n o n t h e p r o j e c t o r h e r e i n t h e h e a r i n g 21 r o o m . 22 S o i n o r d e r f o r J u d g e A n d e r s o n t o b e a b l e t o f o l l o w 23 a l o n g w i t h y o u r a r g u m e n t s , m a k e s u r e y o u a r e r e f e r e n c i n g t h e 24
IPR2014-00070 Patent 8,112,504 5 s l i d e n u m b e r or p a r t i c u l a r d e m o n s t r a t i v e t h a t y o u a r e r e l y i n g 1 u p o n s o t h a t J u d g e A nd e r s o n c a n f o l l o w a l o n g . 2 C o u n s e l f o r P e t i t i o n e r , d o y o u h a v e a n y q u e s t i o n s ? 3 M R . B R O W N : N o , Y o u r H o n o r . 4 J U D G E W A R D : C o u n s e l f o r P a t e n t O w n e r , a n y 5 q u e s t i o n s f r o m y o u ? 6 M R . F E M A L : N o , Y o u r H o n o r . 7 J U D G E W A R D : A l l r i g h t . P e t i t i o n e r , w h e n y o u 8 a r e r e ad y . 9 M R . B R O W N : G o o d a f t e r n o o n . 10 J U D G E W A R D : G o o d a f t e r n o o n . 11 M R . B R O W N : T h e B o a r d s h o u l d i n v a l i d a t e t h e 12 ' 5 0 4 p a t e n t . 13 J U D G E W A R D : M r . B r o w n , d i d y o u w a n t t o 14 r e s e r v e a n y t i m e f o r r e b u t t a l ? 15 M R . B R O W N : Y e s . 16 J U D G E W A R D : H o w m u c h ? 17 M R . B R O W N : P l ea s e r e s e r v e 2 0 m i n u t e s . 18 J U D G E W A R D : 2 0 m i n u t e s f o r r e b u t t a l . O k a y . 19 N o t e d . 20 M R . B R O W N : T h e B o a r d s h o u l d i n v a l i d a t e t h e 21 ' 5 0 4 p a t e n t b e c a u s e P e r s o n a l A u d i o m a d e t h r e e a r g u m e n t s 22 distinguishing the CNN/Compton reference in its response. 23 B u t i n t h e d e p o si t i o n o f P e r s o n a l A u d i o ' s e x p e r t , 24 P e r s o n a l A u d i o ' s e x p e r t a d m i t t e d t h a t e a c h o f t h o s e a r g u m e n t s 25
IPR2014-00070 Patent 8,112,504 6 i s w r o n g . T h e f i r s t a r g u m e n t t h a t P e r s o n a l A u d i o m a d e w a s 1 t h a t t h e t a b l e o f c o n t e n t s f i l e , c o n t e n t s . h t m l i n t h e C N N 2 r e f e r e n c e d o e s n o t h a v e a p r e d e t e r m i n e d U R L. B u t D r . N e l s o n 3 t e s t i f i e d i n h i s d e p o s i t i o n t h a t a U R L e x a c t l y l i k e t h e o n e 4 d i s c l o s e d i n t h e C N N r e f e r e n c e w i t h a s i x-d i g i t d a t e c o d e w a s a 5 p r e d e t e r m i n e d U R L . 6 P e r s o n a l A u d i o a r g u e d t h a t t h e c o n t e n t s . h t m l f i l e i n 7 t h e C N N r e f e r e n c e i s n o t a n u p d a t e d c o m pi l a t i o n f i l e , b u t 8 D r . N e l s o n a d m i t t e d t h a t t h e c o n t e n t s . h t m l f i l e i s u p d a t e d e a c h 9 d a y . 10 P e r s o n a l A u d i o ' s t h i r d a r g u m e n t w a s -- 11 J U D G E W A R D : M r . B r o w n , l e t m e s t o p y o u r i g h t 12 t h e r e o n t h a t p a r t i c u l a r p o i n t . 13 M R . B R O W N : Y e s . 14 J U D G E W A R D : U p d a t e d e a c h d a y. I s n ' t a n e w f i l e 15 c r e a t e d e a c h d a y ? 16 M R . B R O W N : L e t m e p u t u p t h e d i s c l o s u r e . I t i s 17 -- a p p e a r s t o b e a n e w f i l e w i t h t h e s a m e n a m e c r e a t e d b y t h e 18 s a m e p r o g r a m i n t h e s a m e l o c a t i o n e a c h d a y . 19 T h e r e i s a p r o g r a m c a l l e d c o n t e n t s . c . T h a t p r o g r a m 20 c o n t e n ts . c , I a m n o w o n s l i d e 1 8 , a n d i t s h o w s f i g u r e 3 o f t h e 21 C o m p t o n r e f e r e n c e a n d a p i e c e o f t h e t e x t d e s c r i b i n g t h a t 22 f i g u r e . T h a t p r o g r a m c o n t e n t s . c r u n s e a c h d a y a f t e r t h e 3 : 4 5 23 a . m . b r o a d c a s t o f t h e N e w s r o o m s h o w f o r t h a t d a y a n d i t 24
IPR2014-00070 Patent 8,112,504 7 p r o c e s s e s t h e c o n t e n t of t h a t C N N N e w s r o o m s h o w e a c h d a y t o 1 g e n e r a t e t h e f i l e c o n t e n t s . h t m l . 2 T h e r e f e r e n c e d o e s n ' t s p e c i f i c a l l y s t a t e h o w t h a t 3 c o n t e n t s . h t m l f i l e t h a t i s s h o w n i n t h e f i g u r e i s p u t o n t o t h e 4 w e b s e r v e r a t t h e U R L w i t h t h e d a t e c o d e t h a t y o u c a n s e e i n 5 f i g u r e 1 a n d i n f i g u r e 2 . B u t -- a n d I a m n o w o n t h e n e x t s l i d e , 6 s l i d e 1 9 -- w h e n I a s k e d D r . N e l s o n a b o u t t h i s p r o c e s s , t h i s i s 7 w h a t h i s t e s t i m o n y w a s . 8 A n d , i n p a r t i c u l a r , I -- h e a g r e e d t h a t t h e f i l e -- I ' m 9 s o r r y , t h e p r o g r a m c o n t e n t s . c r u n s e a c h d a y . I t g e n er a t e s t h e 10 H T M L f i l e . A n d t h e n a s a r e s u l t t h e c o n t e n t s . h t m l f i l e i s 11 u p d a t e d e a c h d a y . 12 J U D G E W A R D : M r . B r o w n , l e t m e a s k y o u , c l a i m 13 3 1 s t a t e s " s t o r i n g a n u n d a t e d v e r s i o n o f c o m p i l a t i o n f i l e i n o n e 14 o f s a i d o n e o r m o r e d a t a s t o r a g e s e r v e r s " a n d t h e n l a t e r s t a t e s , 15 " s a i d u p d a t e d v e r s i o n o f s a i d c o m p i l a t i o n f i l e c o n t a i n i n g 16 a t t r i b u t e d a t a . " 17 D o e s n ' t c l a i m 3 1 r e q u i r e t h a t i t i s o n e c o m p i l a t i o n 18 f i l e t h a t i s u p d a t e d a n d n o t a s e q u e n c e o f n e w f i l e s c r e a t e d e a c h 19 a n d e v e r y d a y t h a t a r e u n r e l a t e d ? 20 M R . B R O W N : W e l l, w h a t t h e c l a i m r e q u i r e s i s t h a t 21 t h e r e b e a n u p d a t e d v e r s i o n o f a c o m p i l a t i o n f i l e . T h e c l a i m 22 d o e s n ' t s p e c i f y w h a t t h a t c o m p i l a t i o n f i l e w a s b e f o r e o r w h a t 23 t h a t c o m p i l a t i o n f i l e i s a f t e r . I t h a s t o b e a n u p d a t e d v e r s i o n o f 24 a c o m p i l a t i o n f i l e . 25
IPR2014-00070 Patent 8,112,504 8 J U D G E W AR D : A n d h o w i s t h i s c o n t e n t s . h t m l , 1 h o w i s t h a t a n u p d a t e d v e r s i o n , l e t ' s s a y , f o r t o d a y , W e d n e s d a y , 2 h o w i s i t a n u p d a t e d v e r s i o n o f w h a t -- o f T u e s d a y ' s H T M L 3 f i l e ? 4 M R . B R O W N : W e l l , b e c a u s e e a c h d a y i t i s u p d a t e d 5 t o i n c l u d e t h e c o n t e n t f o r t h a t d a y ' s C NN N e w s r o o m b r o a d c a s t . 6 J U D G E W A R D : S o y o u w o u l d a g r e e t h a t i t d o e s 7 n o t l i k e l y c o n t a i n a n y c o n t e n t t h a t w o u l d h a v e b e e n t h e r e t h e 8 p r e v i o u s d a y ? E a c h d a y i s n e w c o n t e n t i n t h e c o n t e n t s . h t m l 9 f i l e ? 10 M R . B R O W N : C o r r e c t , e a c h d a y w i l l b e n e w 11 c o n t e n t , g e n e r at e d i n t h e s a m e w a y b a s e d o n t h e n e w c o n t e n t 12 t h a t w a s b r o a d c a s t t h a t m o r n i n g . T h a t i s c o r r e c t . 13 H o w e v e r , I w a n t t o e m p h a s i z e , t h e c l a i m d o e s n o t 14 s a y t h e r e m u s t b e a s i n g l e c o m p i l a t i o n f i l e . I t d o e s n o t s a y t h a t 15 i t m u s t b e a s i n g l e f i l e a t a s p e c i f i c f i xe d u n c h a n g e d U R L . I t 16 s a y s t h e r e h a s t o b e a f i l e . I t s a y s t h a t i t m u s t b e a n u p d a t e d 17 v e r s i o n o f a f i l e . 18 A n d t h e i s s u e , i t s e e m s t o b e , i s w h e t h e r t h e c l a i m 19 p r o s c r i b e s t h a t a n u p d a t e d v e r s i o n i s c r e a t e d i n a p a r t i c u l a r 20 w a y . A n d i t d o e s n ' t . I t d o e s n ' t s a y t h a t t h e f i l e h a s t o b e 21 a m e n d e d , t h a t i t h a s t o h a v e h a d o l d c o n t e n t i n i t a n d t h a t o l d 22 c o n t e n t h a s t o e i t h e r b e r e p l a c e d o r s u p p l e m e n t e d . I t j u s t s a y s 23 t h e r e i s a f i l e , i t h a s t o h a v e b e e n u p d a t e d , a n d t h a t u p d a t e d 24 v e r s i o n o f c o n t e n t s . h t m l i s d e s c r i b ed r i g h t t h e r e . I n f a c t , t h e 25
IPR2014-00070 Patent 8,112,504 9 p a t e n t s p e c i f i c a l l y s a y s -- I w i l l f i n d t h i s s l i d e s i t e -- t h a t i t i s 1 u p d a t e d . 2 I d o n ' t h a v e t h e c i t e h a n d y , I a p o l o g i z e . 3 S o I a m g o i n g t o c o m e b a c k t o w h e r e I w a s . T h e r e 4 i s t h e u p d a t e d c o m p i l a t i o n f i l e i s s u e . T h e t h i r d a rg u m e n t t h a t 5 P e r s o n a l A u d i o h a s m a d e i s t h a t t h e r e i s n o c o m p i l a t i o n f i l e a t 6 a l l b e c a u s e t h e n e w s s e g m e n t s t h a t a r e s h o w n i n f i g u r e 1 o f t h e 7 p a t e n t -- I ' m s o r r y , o f t h e C N N r e f e r e n c e a r e n o t a c t u a l l y 8 e p i s o d e s , t h a t w h a t f i g u r e 1 o f t h e C N N a c t u a l l y s h o w s i s a 9 s i n g l e e p i s o d e t h a t c o n t a i n s m u l t i p l e s e g m e n t s . 10 D r . N e l s o n w a s a s k e d a b o u t t h i s i n h i s d e p o s i t i o n , 11 P e r s o n a l A u d i o ' s e x p e r t , a n d h e t e s t i f i e d u n d e r t h e B o a r d ' s 12 d e f i n i t i o n o f e p i s o d e , a s a d o p t e d i n t h e I n s t i t u t i o n d e c i s i o n , 13 t h a t e a c h o f t h e i n d i v i d u a l se g m e n t s s h o w n i n f i g u r e 1 o f C N N 14 a r e , i n f a c t , e p i s o d e s . 15 J U D G E W A R D : M r . B r o w n , w h a t i s t h e d i f f e r e n c e 16 b e t w e e n a n e p i s o d e a n d a p r o g r a m s e g m e n t ? 17 M R . B R O W N : A p r o g r a m -- i f y o u h a v e t w o 18 p r o g r a m s e g m e n t s t h a t m i g h t b e c o m p l e t e l y u n r e l a t e d t o e a c h 19 o t h e r, t h e y m i g h t n o t b e e p i s o d e s . W h a t t h e p a t e n t d e s c r i b e s a s 20 e p i s o d e s a r e p r o g r a m s e g m e n t s t h a t a r e r e l a t e d t o e a c h o t h e r , 21 p o t e n t i a l l y , f o r e x a m p l e , b e c a u s e t h e y s h o u l d b e p l a y e d i n 22 s e q u e n c e , p o t e n t i a l l y b e c a u s e t h e y a r e p a r t s o f w o r l d n e w s . 23
IPR2014-00070 Patent 8,112,504 10 S o , f o r e x a m pl e , I w i l l r e f e r y o u t o -- I b e l i e v e t h i s 1 i s s l i d e -- I a m d i s c u s s i n g c o l u m n 3 0 o f t h e p a t e n t . A n d I w i l l 2 g i v e y o u t h e s l i d e n u m b e r , s l i d e 2 2 . 3 A n d w h a t t h e p a t e n t d e s c r i b e s h e r e i s t h a t y o u c a n 4 h a v e p r o g r a m s e g m e n t s , w h i c h i s t h e t o p b o x , i t c a n b e 5 c o m bi n e d , n o w a t l i n e 3 1 , c o m b i n e d w i t h o t h e r r e l a t e d p r o g r a m 6 s e g m e n t s t o f o r m a s e q u e n c e o f a s s o c i a t e d s e g m e n t s , h e r e 7 c a l l e d a s u b j e c t . 8 A n d t h e n i t g o e s o n t o e x p l a i n i n t h e n e x t c o l u m n , 9 n o w c o l u m n 3 0 a t a r o u n d l i n e 1 8 o n w a r d s , t h a t t h o s e s u b j e c t s 10 c a n i n c l ud e w o r l d n e w s , n a t i o n a l n e w s , l o c a l n e w s , e t c e t e r a . 11 S o -- 12 J U D G E W A R D : D i d n ' t y o u a r g u e i n y o u r r e p l y 13 b r i e f t h a t p r o g r a m s e g m e n t s c a n b e r e l a t e d , e v e n i f t h e y a r e 14 o n l y t e m p o r a l l y r e l a t e d ? 15 M R . B R O W N : C o r r e c t . S o , f o r e x a m p l e , t h e w o r l d 16 n e w s s u b j e c t th a t ' s d e s c r i b e d h e r e m i g h t c o n t a i n f i v e d i f f e r e n t 17 s u b j e c t s t h a t w o u l d b e t e m p o r a l l y r e l a t e d i n t h e s e n s e t h a t t h e y 18 a r e t h e w o r l d n e w s o f t h e d a y , o f t h a t d a y . 19 T h e y m i g h t b e a b o u t u n r e l a t e d m a t t e r s . O n e m i g h t 20 b e a b o u t t h e e v e n t s t h a t a r e o c c u r r i n g i n I r aq . A n o t h e r m i g h t 21 b e a b o u t t h e e v e n t s t h a t a r e o c c u r r i n g i n A f g h a n i s t a n . T h o s e 22 e v e n t s m i g h t n o t b e c o n n e c t e d t o e a c h o t h e r . 23 T h e f a c t t h a t t w o p r o g r a m s e g m e n t s o f t h e w o r l d 24 n e w s a r e c o n t a i n e d i n t h e w o r l d n e w s , d o e s n ' t m e a n t h a t t h e i r 25
IPR2014-00070 Patent 8,112,504 11 s u b j e c t m a t t e r i s ne c e s s a r i l y r e l a t e d , b u t t h e y a r e n o n e t h e l e s s 1 r e l a t e d b e c a u s e t h e y a r e b o t h p a r t o f t h e w o r l d n e w s . A n d 2 t h a t ' s e x a c t l y w h a t w e h a v e . 3 J U D G E A N D E R S O N : S o , c o u n s e l , w h e n t h e 4 p r e a m b l e s a y s " s e r i e s o f e p i s o d e s , " a r e y o u i n t e r p r e t i n g t h a t t o 5 b e r e l a t e d e p i s o de s ? 6 M R . B R O W N : Y o u r H o n o r , I a m i n t e r p r e t i n g t h a t 7 t o m e a n r e l a t e d s e g m e n t s a s t h e B o a r d d e f i n e d " e p i s o d e s . " I n 8 o t h e r w o r d s , a n e p i s o d e i s r e l a t e d s e g m e n t s . A n d s o I i n t e r p r e t 9 " s e r i e s o f e p i s o d e s " a s t h e B o a r d d i d i n t h e I n s t i t u t i o n d e c i s i o n 10 t o b e a s er i e s o f r e l a t e d s e g m e n t s . 11 F o r e x a m p l e , a s I h a v e p u t u p o n t h e s l i d e , w o r l d 12 n e w s o r n a t i o n a l n e w s . 13 J U D G E A N D E R S O N : S o d o e s t h e " s e r i e s o f 14 e p i s o d e s " a s i t i s u s e d i n t h e c l a i m , i s t h a t a n i s s u e t h a t ' s n o t 15 a m o n g t h e t h r e e i s s u e s t h a t I h e a r d y o u a r t i c u la t e , t h a t ' s n o t a n 16 i s s u e h e r e b e c a u s e t h e C N N , f o r e x a m p l e , h a s m u l t i p l e e p i s o d e s 17 t h a t a r e r e l a t e d i n t h a t t h e y a r e a l l n e w s , I g a t h e r , a n d t h u s t h e y 18 a r e a s e r i e s o f e p i s o d e s ? 19 M R . B R O W N : T h a t i s o u r p o s i t i o n . P e r s o n a l 20 A u d i o d o e s d i s p u t e t h a t t h e e p i s o de s s h o w n i n f i g u r e 1 o f C N N , 21 t h a t t h o s e s e g m e n t s , e x c u s e m e , a r e e p i s o d e s . T h e i r a r g u m e n t 22 i s b e c a u s e o n e i s a b o u t a c o l l i s i o n a t J u p i t e r a n d o n e i s a b o u t 23 g e n e t i c a l l y-e n g i n e e r e d p l a n t s , b e c a u s e t h a t s u b j e c t m a t t e r i s 24
IPR2014-00070 Patent 8,112,504 12 d i f f e r e n t , t h e y a r e n o t r e l a t e d , e v e n th o u g h t h e y a r e b o t h p a r t o f 1 t h e s a m e d a y ' s C N N N e w s r o o m b r o a d c a s t . 2 T h a t i s t h e t h i r d a r g u m e n t t h a t I w a s a t t e m p t i n g t o 3 d e s c r i b e . O n t h a t p o i n t , t h o u g h , t h e B o a r d ' s i n i t i a l d e f i n i t i o n 4 o f " e p i s o d e , " w h i c h i s b a s e d o n c o l u m n 1 9 a n d 2 0 , I b e l i e v e , o f 5 t h e p at e n t , c o l u m n 1 9 o f t h e p a t e n t , u n d e r t h a t d e f i n i t i o n , 6 P e r s o n a l A u d i o ' s e x p e r t t e s t i f i e d t h a t t h e s e g m e n t s s h o w n i n 7 f i g u r e 1 o f C N N N e w s r o o m a r e , i n f a c t , e p i s o d e s . 8 S o h e r e I h a v e p u t u p o n t h e n e x t s l i d e , w h i c h i s 9 s l i d e 2 3 , t h e d e f i n i t i o n t h a t w a s p r o v i de d b y t h e B o a r d i n t h e 10 I n s t i t u t i o n d e c i s i o n , " a p r o g r a m s e g m e n t r e p r e s e n t e d b y o n e o r 11 m o r e m e d i a f i l e s , w h i c h i s p a r t o f a s e r i e s o f r e l a t e d s e g m e n t s . " 12 A n d I w i l l q u o t e t o y o u w h a t w e p u t o n p a g e 6 o f 13 o u r r e p l y b r i e f , t h e t e s t i m o n y o f P e r s o n a l A u d i o ' s e xp e r t , a n d 14 t h e q u e s t i o n w a s : S o u n d e r t h e d e f i n i t i o n t h a t w a s a d o p t e d b y 15 t h e B o a r d -- a n d I g o o n t o r e a d i t -- u n d e r t h a t d e f i n i t i o n , t h e 16 t w o p r o g r a m s e g m e n t s t h a t a r e p a r t o f t h e M a y 1 9 C N N 17 N e w s r o o m s h o w t h a t a r e s h o w n i n f i g u r e 1 a r e b o t h e p i s o d e s , 18 c o r re c t ? 19 " A n s w e r : Y e s , I t h i n k s o . " 20 S o t h e r e i s a d i s p u t e , b u t t h e e v i d e n c e i n t h e r e c o r d 21 s h o w s t h a t w e a r e c o r r e c t , t h a t s h o w s s h o u l d b e d e e m e d 22 e p i s o d e s . 23 J U D G E W A R D : M r . B r o w n , c a n y o u g i v e m e a n 24 e x a m p l e u n d e r y o u r p r o p o s e d c o n s t r u c t i o n o f " e p i s o d e " an d t h e 25
IPR2014-00070 Patent 8,112,504 13 r e l a t e d c o n s t r u c t i o n o f p r o g r a m s e g m e n t s , r e l a t e d p r o g r a m 1 s e g m e n t s , I a m u n d e r s t a n d i n g y o u t o a r g u e r e l a t e d p r o g r a m 2 s e g m e n t s c o n s t i t u t e a n e p i s o d e . C a n y o u g i v e m e a n e x a m p l e 3 o f a p r o g r a m s e g m e n t s t h a t y o u c o n s i d e r t o b e u n r e l a t e d ? 4 M R . B R O W N : S ur e . I t h i n k i t i s s i m p l e . Y o u c a n 5 g o b a c k t o f i g u r e 1 o f t h e C N N N e w s r o o m . S o I w e n t b a c k t w o 6 s l i d e s , a n d i t i s s l i d e 2 1 . A n d t h e r e i s a n i m a g e o f f i g u r e 1 o f 7 C N N N e w s r o o m . 8 S o i f t h e s e t w o s t o r i e s , o n e w h i c h i s a b o u t a c o s m i c 9 c o l l i s i o n n e a r J u p i t e r an d o n e w h i c h i s a b o u t 10 g e n e t i c a l l y-e n g i n e e r e d p l a n t s , i f t h o s e w e r e o n d i f f e r e n t w e b 11 p a g e s , t h e y w e r e n ' t b o t h p a r t o f t h e C N N N e w s r o o m s h o w , o n e 12 w a s r e p o r t e d b y C B S a t 1 : 0 0 p . m . o n o n e d a y a n d a n o t h e r w a s 13 r e p o r t e d b y N B C a t 8 : 0 0 a . m . t h r e e w e e k s l a t e r , t h e y w o u l d b e 14 u n r e l a t e d . 15 H o w e v e r , b e c a u s e t h e y a r e b o t h p a r t o f t h i s C N N 16 N e w s r o o m s h o w , t h e y a r e p a r t o f t h e c o n t e n t t h a t C N N s e l e c t e d 17 t o i n c l u d e i n i t s e d u c a t i o n a l b r o a d c a s t e a c h d a y , t h e y a r e 18 r e l a t e d b y b e i n g p a r t o f t h e s a m e s h o w . 19 J U D G E W A R D : D o y o u u nd e r s t a n d t h e d i f f i c u l t y 20 t h a t t h e p a n e l h a s , t h o u g h , i n t r y i n g t o d e t e r m i n e t h e 21 b o u n d a r i e s o f w h a t y o u a r e s u g g e s t i n g ? Y o u a r e t e l l i n g u s t h a t 22 i f t h e y s h o w u p o n t h e s a m e p a g e o n t h e s a m e d a y , t h e y a r e 23 r e l a t e d , b u t i f t h e y s h o w u p o n d i f f e r e n t p a g e s o n d i ff e r e n t 24 d a y s , t h e y a r e u n r e l a t e d . 25
IPR2014-00070 Patent 8,112,504 14 D o e s i t e x t e n d t o -- w e l l , m a y b e C N N c h a n g e s t o 1 w h e r e t h i s p a g e i s o n l y u p d a t e d e v e r y t w o d a y s ? I s t h e r e a 2 c e r t a i n a m o u n t o f t i m e t h a t i s r e q u i r e d ? I s t h e r e a c e r t a i n 3 a m o u n t o f , i f t h e y a r e r e l a t e d w e b p a g e s , b u t y o u g av e u s t h e 4 e x a m p l e o f C B S v e r s u s A B C . W h a t i f t h e y w e r e b o t h C N N w e b 5 p a g e s b u t t h e y w e r e g i v e n o n d i f f e r e n t d a y s ? A r e t h o s e n o w 6 s o m e h o w u n r e l a t e d ? 7 M R . B R O W N : W e l l , I t h i n k t h a t t h e a n s w e r t o t h a t 8 q u e s t i o n m i g h t n o t a c t u a l l y m a t t e r h e r e , t h o u g h w h a t I do 9 b e l i e v e i s t h a t t h e e x a m p l e p r o v i d e d i n t h e p a t e n t o f s u b j e c t s 10 w h i c h c o n s i s t o f a s e r i e s o f r e l a t e d s e g m e n t s a r e w o r l d n e w s , 11 c o m p u t e r t r a d e n e w s , e t c e t e r a . 12 S o t h e p a t e n t i s e x p l a i n i n g t h a t s e g m e n t s o f n e w s 13 c a n b e g r o u p e d t o g e t h e r b y t h e i r s u b j e c t m a t te r b e c a u s e t h e y 14 a r e a l l w o r l d n e w s . T h e p a t e n t d o e s n ' t d i s t i n g u i s h , d o e s n ' t s e t 15 t h e b o u n d a r i e s o f e p i s o d e i n t h e w a y t h a t y o u a r e d e s c r i b i n g . 16 A l l t h e p a t e n t s a y s i s i t i s a s e r i e s o f r e l a t e d s e g m e n t s . 17 S o I d o u n d e r s t a n d t h e d i f f i c u l t y i n a n a b s t r a c t 18 sen s e , b u t I t h i n k t h a t t h e p a t e n t p r o v i d e s t h e a n s w e r , a t l e a s t 19 w i t h t h e s p e c i f i c i t y n e e d e d t o r e a c h a d e c i s i o n h e r e , b e c a u s e 20 w h a t t h e p a t e n t d e s c r i b e s a s a n e p i s o d e i s e x a c t l y w h a t t h e 21 C N N r e f e r e n c e c o n t a i n s . 22 A n d t h e n o n t o p o f t h a t , I w i l l j u s t , i f t h e re i s a n y 23 c o n c e r n a b o u t t h i s , t h e r e h a s b e e n n o a r g u m e n t f r o m P e r s o n a l 24 A u d i o t h a t i t m a k e s a n y s o r t o f t e c h n o l o g i c a l d i f f e r e n c e w h a t 25
IPR2014-00070 Patent 8,112,504 15 t h e s p e c i f i c c o n t e n t i s o f t h e e p i s o d e s t h a t a r e b e i n g d e s c r i b e d 1 i n t h e p a t e n t . 2 I f w e t a k e a s t e p b a c k a n d w e l o o k a t w h a t i s 3 d e s c r i b e d i n c l a i m 3 1 , i t d e s c r i b e s a m e c h a n i s m f o r d i s t r i b u t i n g 4 o v e r t h e I n t e r n e t a s e r i e s o f r e l a t e d e p i s o d e s . B u t t h e r e i s n o 5 a r g u m e n t t h a t i t c o u l d b e d o n e a n y d i f f e r e n t l y o r t h a t i t n e e d t o 6 b e d o n e a n y d i f f e r e n t l y i f t h e y w e r e n ' t , i n f a c t , r e l a t ed , i f i t w a s 7 j u s t a s e r i e s o f v i d e o s t h a t h a d n o r e l a t i o n t o e a c h o t h e r , a l l o f 8 t h e e l e m e n t s o f t h e c l a i m w o u l d f u n c t i o n i n e x a c t l y t h e s a m e 9 w a y . 10 A n d , a s a r e s u l t , a n a r g u m e n t t h a t t h e s p e c i f i c 11 s u b j e c t m a t t e r a n d t h e d e g r e e o f r e l a t e d n e s s o f t h e s p e c i f i c 12 e p i s o d e s , a n y a r g u m e n t t h a t t h a t s o m e h o w l e n d s p a t e n t a b i l i t y i s 13 i n c o n s i s t e n t w i t h t h e l a w o f a n o n-f u n c t i o n a l d e s c r i p t i v e 14 m a t e r i a l . S o i n t h e M a t h i a s c a s e t h a t w e c i t e d i n o u r r e p l y , 15 t h e r e w a s a p a t e n t w h i c h r e q u i r e d a p o p-u p w i n d o w t o b e 16 d i s p l a y e d o v e r a s p o r t i n g e v e n t . 17 A n d t h e r e w a s a p r i o r a r t w h e r e i t w o u l d p o p u p t h e 18 w i n d o w , i t w o u l d d i s p l a y i t o v e r t h e t e l e v i s i o n , b u t i t w o u l d n ' t 19 d i s p l a y i t d u r i n g t h e s p o r t i n g e v e n t . I t w o u l d d i s p l a y i t d u r i n g 20 a n i n t e r v i e w a f t e r t h e s p o r t i n g e v e n t o r b e f o r e t h e sp o r t i n g 21 e v e n t s t a r t e d . 22 A n d t h e c o n c l u s i o n i n t h a t c a s e w a s t h a t i t d o e s n ' t 23 m a k e a n y d i f f e r e n c e w h a t t h e c o n t e n t i s o f t h e t e l e v i s i o n s h o w 24 t h a t i s b e i n g d i s p l a y e d u n d e r t h e p o p-u p w i n d o w . Y o u c a n ' t 25
IPR2014-00070 Patent 8,112,504 16 r e l y o n t h a t t y p e o f n o n-f u n c t i o n a l d e s c r i p t i v e m a t e r i a l f o r 1 p u r p o s e s o f p a t e n t a b i l i t y . 2 S o e v e n i f t h e p a t e n t d i d n ' t d e s c r i b e e p i s o d e s 3 e x a c t l y i n t h e s a m e w a y t h a t C N N d e s c r i b e s e p i s o d e s , i t s t i l l 4 w o u l d n ' t b e a b l e t o d e f e n d t h e ' 5 0 4 p a t e n t . 5 J U D G E W A R D : L e t m e m a k e s u r e I u n d e r s t a n d y o u 6 p e r f e c t l y , t h o u g h , Mr . B r o w n . Y o u d o a g r e e , P e t i t i o n e r d o e s 7 a g r e e t h a t t h e t e r m " e p i s o d e " a s u s e d i n c l a i m 3 1 r e q u i r e s a 8 c e r t a i n a m o u n t o f r e l a t i o n b e t w e e n s e g m e n t s ; i s t h a t c o r r e c t ? 9 M R . B R O W N : T h a t i s c o r r e c t . T h e B o a r d ' s 10 d e f i n i t i o n , w e b e l i e v e i s c o r r e c t . I t i s b a s e d o n t h e d i s c l o s u r e . 11 S o I h a v e p u t u p s l i d e 2 3 . T h e d e f i n i t i o n t h a t w e p r o p o s e d a n d 12 t h e B o a r d a d o p t e d i n t h e I n s t i t u t i o n d e c i s i o n w a s " a p r o g r a m 13 s e g m e n t , r e p r e s e n t e d b y o n e o r m o r e m e d i a f i l e s , w h i c h i s p a r t 14 o f a s e r i e s o f r e l a t e d s e g m e n t s . " 15 A n d t h a t i s b a s e d d i r e c t l y o n t h e l a n g u a g e o f t h e 16 p a t e n t a s c i t e d i n t h e I n s t i t u t i o n d e c i s i o n , c o l u m n 1 9 , 3 5 t o 4 2 . 17 I f t h e r e a r e -- I w i l l n o w t u r n b r i e f l y t o t h e C B C 18 r e f e r e n c e . 19 T h e C B C P a t r i c k r e f e r e n c e i s a r e f e r e n c e t h a t 20 d e s c r i b e s a p r o g r a m t h a t d i g i t i z e d r a d i o s h o w s f r o m t h e 21 C a n a d i a n B r o a d c a s t i n g C o r p o r a t i o n a n d d i s t r i b u t e d t h e m o v e r 22 t h e I n t e r n e t t h r o u g h F T P a n d t h r o u g h t h e W o r l d W i d e W e b . 23 L e t m e g o t o s l i d e 2 6 . 24
IPR2014-00070 Patent 8,112,504 17 A n d t h e s i t u a t i o n w i t h t h i s r e f e r e n c e i s v e r y s i m i l a r 1 t o t h e C N N r e f e r e n c e . T h e p r i m a r y a r g u m e nt t h a t P e r s o n a l 2 A u d i o m a d e a g a i n s t P a t r i c k C B C r e f e r e n c e s e e m s t o b e t h a t 3 b e c a u s e t h e r e i s n o a c t u a l p i c t u r e i n t h e r e f e r e n c e o f t h e t a b l e 4 o f c o n t e n t s p a g e f o r a r a d i o s h o w , a n d w e f o c u s e d i n o u r p a p e r s 5 o n t h e Q u i r k s & Q u a r k s r a d i o s h o w t h a t w a s b r o a d c a s t , t h a t 6 b e c a u s e t h e r e i s n o p i c t u r e i n t h e r e f e r e n c e o f t h e w e b p a g e f o r 7 t h a t r a d i o s h o w , t h a t t h e w e b p a g e m i g h t n o t b e t h e r e , t h a t t h e 8 w e b p a g e m i g h t n o t h a v e a U R L , t h a t i t m i g h t n o t b e w h a t i s 9 r e q u i r e d t o a n t i c i p a t e t h e c l a i m . 10 H o w e v e r , a g a i n , P e r s o n a l A u d i o ' s e x p e r t d i d n o t 11 s u p p o r t t h a t a r g u m e n t . D r . N e l s o n a d m i t t e d i n h i s d e p o s i t i o n 12 t h a t a p e r s o n o f o r d i n a r y s k i l l i n t h e a r t " w o u l d u n d e r s t a n d " 13 f r o m t h e P a t r i c k r e f e r e n c e t h a t t h e r e w a s , i n f a c t , a w e b p a g e 14 t h e r e , e v e n t h o u g h i t w a s n ' t s p e c i f i c a l l y p i c tu r e d . S p e c i f i c a l l y 15 h e a d m i t t e d -- 16 J U D G E A N D E R S O N : I s n ' t P a t r i c k u s e d i n y o u r 17 p e t i t i o n t o a s s e r t u n p a t e n t a b i l i t y b a s e d o n a n t i c i p a t i o n , t h o u g h ? 18 M R . B R O W N : Y e s , Y o u r H o n o r , i t i s . A n d t h e 19 q u e s t i o n o n a n t i c i p a t i o n i s w h e t h e r a p e r s o n o f o r d i n a r y s k i l l in 20 t h e a r t w o u l d u n d e r s t a n d f r o m t h e r e f e r e n c e t h a t e a c h e l e m e n t 21 o f t h e c l a i m w a s p r e s e n t . 22 A n d h e r e t h e f a c t t h a t t h e y d i d n ' t p u t a p i c t u r e o f 23 t h e w e b p a g e i n d o e s n ' t m e a n t h a t a p e r s o n o f o r d i n a r y s k i l l i n 24 t h e a r t s e e i n g t h e d e s c r i p t i o n o f p r o v i d i n g t he c o n t e n t t h r o u g h 25
IPR2014-00070 Patent 8,112,504 18 t h e W o r l d W i d e W e b w o u l d u n d e r s t a n d t h a t a w e b p a g e m i g h t 1 b e a b s e n t . 2 P e r s o n a l A u d i o ' s e x p e r t a d m i t t e d t h a t o n r e a d i n g 3 t h i s P a t r i c k r e f e r e n c e , t h e y w o u l d u n d e r s t a n d t h a t a w e b p a g e 4 w a s o r a s e t o f w e b p a g e s w a s p r e s e n t . 5 A n d i t i s l i k e i f y o u h a d a p a p e r w h i c h d e s c r i b e s a 6 c a r b u t d i d n ' t m e n t i o n a s t e e r i n g w h e e l , a p e r s o n o f o r d i n a r y 7 s k i l l i n t h e a r t m i g h t u n d e r s t a n d t h a t t h e c a r h a d a s t e e r i n g 8 w h e e l . 9 J U D G E W A R D : M r . B r o w n , y o u a g r e e t h a t t h e 10 r e f e r e n c e i t s e l f , P a t r i c k , d o e s n o t d i s c l o se s p e c i f i c a l l y a t a b l e 11 o f c o n t e n t s-t y p e o f w e b p a g e ? 12 M R . B R O W N : N o , I d o n ' t a g r e e w i t h t h a t . I 13 a p o l o g i z e i f I w a s u n c l e a r . I t d o e s d i s c l o s e t h a t t o a p e r s o n o f 14 o r d i n a r y s k i l l i n t h e a r t . I t d o e s n ' t c o n t a i n a p i c t u r e o f t h e w e b 15 p a g e . 16 L e t m e s h o w y o u w h a t i t d o e s d i s c l o s e . E x c u s e m e , 17 l e t m e g o b a c k . I a m n o w a t s l i d e 2 7 . A n d a t s l i d e 2 7 w e h a v e 18 a q u o t e f r o m p a g e s 2 t o 3 , w h i c h s h o w s t h a t i t w a s m a d e 19 a v a i l a b l e t h r o u g h t h e I n t e r n e t o n t h e W o r l d W i d e W e b . T h a t ' s 20 d a t a p o i n t n u m b e r 1 . 21 I t e x p l a i n s t h a t p r o g r a m s w e r e b r o k e n i n t o s e g m e n t s 22 t h a t h a d a c c o m p a n y i n g t e x t , s o u s e r s c o u l d s e l e c t t h e p a r t s o f 23 t h e p r o g r a m t h a t w e r e o f i n t e r e s t t o t h e m . T h a t ' s s l i d e 2 8 . 24
IPR2014-00070 Patent 8,112,504 19 G o i n g t o s l i d e 2 9 , I w i l l k e e p g o i n g t o s l i d e 3 0 , i t 1 e x p l a i n s -- 2 J U D G E W A R D : L e t m e a s k y o u t o g o b a c k t o t h a t 3 q u o t e t h a t y o u j u s t g a v e u s . T h i s i s d i s c l o s u r e t h a t I h a v e 4 l o o k e d a t c l o s e l y . T h e l a n g u a g e i n t h i s s e n t e n c e s a y s " t h e 5 l a r g e r p r o g r a m s w e r e b r o k e n i n t o s e g m e n t s t h a t w e r e d e s c r i b e d 6 i n a c c o m p a n y i n g t e x t . " 7 W o u l d y o u a g r e e t h a t t h e t e x t a c c o m p a n i e s t h e 8 b r o k e n s e g m e n t ? 9 M R . B R O W N : Y e s , I w o u l d . 10 J U D G E W A R D : S o i n -- 11 M R . B R O W N : T h a t ' s r e p e a t e d e l s e w h e r e i n t h e 12 r e f e r e n c e . 13 J U D G E W A R D : -- d o w n l o a d i n g t h e s e g m e n t , I 14 w o u l d r e c e i v e t h e a c c o m p a n y i n g t e x t ? 15 M R . B R O W N : I t h i n k -- I t h i n k n o t . I t h i n k w h a t 16 t h a t s e n t e n c e s a y s i s -- k e e p i n m i n d , t h i s i s 1 9 9 6 , w h e n 17 b a n d w i d t h w a s n o t a s g o o d a s i t i s t o d a y . A n d w h e n p e o p l e 18 w e r e t h i n k i n g a b o u t d o w n l o a d i n g a n a u d i o f i l e a n d t h e y w a n t e d 19 t o m a k e s u r e t h e y w e r e o n l y d o w n l o a d i n g t h e p a r t s o f t h e a u d i o 20 f i l e s t h a t w e r e o f i n t e r e s t t o t h e m , s o t h e y w a n t e d t o b e a b l e t o 21 l o o k a t t h e t e x t a n d k n o w w h a t t h e y w e r e g e t t i n g b e f o r e t h e y 22 d o w n l o a d e d i t . 23
IPR2014-00070 Patent 8,112,504 20 S o w h a t t h i s s e n t e n c e s a y s t o a p e r s o n o f o r d i n a r y 1 s k i l l i n t h e a r t i s : Y o u n e e d t o r e a d t h e t e x t s o y o u k n o w w h a t 2 y o u a r e g e t t i n g b e f o r e y o u c l i c k o n t h e l i n k a n d g e t i t . 3 S o f o r -- t h e r e i s -- a n d , a s I h a v e s a i d , t h a t i s 4 r e p e a t e d l a t e r o n . F o r e x a m p l e h e r e , n o w o n s l i d e 2 0 -- e x c u s e 5 m e , 3 0 , w e ' r e s p e c i f i c a l l y d e s c r i b i n g Q u i r k s & Q u a r k s . I t 6 p o i n t s o u t t ha t y o u c a n s e l e c t p o r t i o n s o f t h e s h o w t h a t w e r e o f 7 i n t e r e s t t o y o u a n d d o w n l o a d t h e m . 8 A n d t h e n t h e n e x t s l i d e , s l i d e 3 1 , " e a c h s h o w h a s a 9 m e n u a t t a c h e d t o i t t o d e s c r i b e t h e c o n t e n t s o f t h e v a r i o u s 10 p a r t s . " 11 S o w h a t i s d i s c l o s e d h e r e ? W h a t i s d i s c l o s e d i s t h a t 12 t h e r e i s t h e Q u i r k s & Q u a r k s s h o w . I w a n t t o g o b a c k o n e s l i d e 13 t o s l i d e 3 0 . T h e r e i s a Q u i r k s & Q u a r k s s h o w , w h i c h i s 14 r e g u l a r l y u p d a t e d o n t h e s e r v e r . W e k n o w f r o m t h e n e x t s l i d e , 15 s l i d e 3 1 , i t h a s a m e n u . W e k n o w f r o m t h a t d e s c r i p t i o n a n d 16 h e r e t h a t i t d e s c r i b e s t h e c o n t e n t s o f e a c h o f t h e s e g m e n t s o f 17 t h a t Q u i r k s & Q u a r k s s h o w i n e n o u g h d e t a i l t h a t y o u c a n p i c k 18 o u t t h e p a r t i c u l a r s e g m e n t s t h a t y o u w a n t t o d o w n l o a d a n d t h e n 19 d o w n l o a d t h e m . 20 W h a t i t d o e s n ' t s a y s p e c i f i c a l l y i s h e r e i s a p i c t u r e 21 of w h a t t h i s l o o k s l i k e w h e n y o u g o t o t h a t s i t e o n t h e W o r l d 22 W i d e W e b . I t t e l l s y o u t h a t i t i s o n t h e W o r l d W i d e W e b , a n d 23 i t t e l l s y o u t h a t t h i s i s w h a t i s -- t h e i n f o r m a t i o n t h a t i s 24 a v a i l a b l e t o y o u . 25
IPR2014-00070 Patent 8,112,504 21 A n d b a s e d o n t h a t d i s c l o s u r e , P e r s o n a l A u d i o ' s 1 e x p e r t -- a n d I w i l l r e a d i t t o y o u -- a c k n o w l e d g e d t h a t t h e r e 2 m u s t -- e x c u s e m e , t h a t a p e r s o n o f o r d i n a r y s k i l l i n t h e a r t 3 w o u l d u n d e r s t a n d , " w o u l d u n d e r s t a n d f r o m t h e a r t i c l e " t h a t 4 t h e r e w a s a w e b p a g e o r a s e t o f w e b p a g e s t h a t p r o v i d e d t h i s 5 i n f o r m a t i o n . A nd t h a t ' s -- t h e c i t e f o r t h a t i s 1 1 9 : 6 t h r o u g h 1 2 3 6 o f t h e N e l s o n d e p o s i t i o n . 7 J U D G E W A R D : M r . B r o w n , t h a t i s t h e e n d o f y o u r 8 2 0 m i n u t e s . Y o u a r e n o w g o i n g i n t o y o u r r e b u t t a l t i m e . Y o u 9 m a y c o n t i n u e , i f y o u w i s h . 10 M R . B R O W N : T h a n k y o u . 11 M R . F E M A L : M ay i t p l e a s e t h e C o u r t , i f w e c o u l d 12 h a n d u p , s i n c e t h e r e i s n o E L M O . 13 J U D G E W A R D : Y e s , y o u m a y , M r . F e m a l . 14 M R . F E M A L : T h a n k y o u , Y o u r H o n o r . 15 J U D G E W A R D : A r e t h e s e t h e s a m e a s p r o v i d e d t o 16 t h e B o a r d ? 17 M R . F E M A L : T h e e x a c t s a m e , a n d p r o v i d e d t o b o t h 18 c o u n s e l h e r e f o r t h e P e t i t i o n e r . 19 J U D G E W A R D : T h a n k y o u . 20 M R . F E M A L : M a y i t p l e a s e t h e C o u r t , f i r s t o f a l l , 21 t o b e g i n w i t h , a q u e s t i o n n o t r e a l l y a n s w e r e d t o J u d g e W a r d , 22 t h e c o m p i l a t i o n f i l e d o e s h a v e a l l e p i s o d e s l i s t e d . I t i s a s i n g l e 23 f i l e . I t i s q ui t e c l e a r f r o m t h e p a t e n t a p p l i c a t i o n a s i t i s d e f i n e d 24 t h a t i t i s . 25
IPR2014-00070 Patent 8,112,504 22 A n d t h e P e t i t i o n e r , d u r i n g t h e d e p o s i t i o n o f M r . 1 N e l s o n , a s k e d q u e s t i o n s a b o u t t h e s e g m e n t . T h e s e g m e n t s t a r t s 2 a t c o l u m n 2 9 o f t h e p a t e n t a n d r e f e r s t o n e w s a n d o t h e r t h i n g s 3 t h a t m a y b e i n a c o m p i l a t i o n f i l e , b u t t h e l a s t r e f e r e n c e t o 4 e p i s o d e s t o p s a t c o l u m n 2 1 a t t h e t o p . 5 A n d s o t h e r e i s d e f i n i t e l y a d e m a r c a t i o n b e t w e e n 6 e p i s o d e s a n d s e g m e n t s . A n d c l a i m s m e a n s o m e t h i n g . A n d i n 7 t h e s e t w o r e f e r e n c e s c i t e d h e r e , t h e C B C P a t r i c k r e f e r e n c e 8 h a r d l y h a s a n y o f t h e c l a i m e d e l e m e n t s r e q u i r e d t o i n v a l i d a t e 9 t h e c l a i m o r t o a n t i c i p a t e t h e c l a i m . 10 J U D G E W A R D : M r . F e m a l , b e f o r e y o u l e a v e t h e 11 p o i n t , I w a n t t o a s k y o u a b o u t e p i s o d e a n d s e g m e n t . 12 M R . F E M A L : Y e s . 13 J U D G E W A R D : C a n y o u d e s c r i b e f o r m e t h e 14 d i f f e r e n c e b e t w e e n a n e p i s o d e a n d a s e g m e n t ? 15 M R . F E M A L : A n e p i s o d e t o m e i s v e r y c l e a r . I f 16 s o m e t h i n g i s r e l a t e d t o o n e a n o t h e r , t h a t w o u l d b e a n e p i s o d e , 17 s u c h a s , l e t ' s s a y , c u r r e n t l y S e i n f e l d , a b u n c h o f e p i s o d e s a r e 18 a l l r e l a t e d t o o n e a n o t h e r . 19 O n t h e o t h e r h a n d , o n t h e s e g m e n t s s h o w n i n t h e 20 C N N / C o m p t o n a r t i c l e , y o u h a v e u n r e l a t e d m a t t e r . 21 A n d a s t h e C o u r t i n t h e c o n s t r u c t i o n o f t h e c l a i m 22 s a i d , r e l a t e d . T h e r e i s n o t h i n g r e l a t e d b e t w e e n , a s w e p u t i n 23 o u r b r i e f , J u p i t e r a n d g e n e t i c v e g e t a b l e s . A t b e s t -- 24
IPR2014-00070 Patent 8,112,504 23 J U D G E W A R D : M r . F e m a l , u n d e r y o u r 1 c o n s t r u c t i o n t h e n , " r e l a t i o n " w o u l d r e q u i r e w h a t ? H o w s h o u l d 2 w e c o n s t r u e r e l a t i o n , t h e m a t i c a l l y r e l a t e d ? 3 M R . F E M A L : Y o u r H o n o r , I w o u l d s a y t h a t i t i s 4 t h e m a t i c a l l y r e l a t e d , t h a t , i n o t h e r w o r d s , t h a t t h e ep i s o d e s a r e 5 r e l a t e d t o o n e a n o t h e r w i t h a c o m m o n t h e m e . A n d c l e a r l y i t i s 6 n o t i n t h e C B C r a d i o o r i n t h e C o m p t o n . 7 J U D G E W A R D : W o u l d y o u c o n s i d e r o n e s e g m e n t 8 p e r t a i n i n g t o w o r l d n e w s a n d o n e s e g m e n t p e r t a i n i n g t o l o c a l 9 n e w s t o b e r e l a t e d , t h e y h a v e a c om m o n t h e m e o f n e w s ? 10 M R . F E M A L : W e l l , I w o u l d s a y t h a t t h o s e a r e j u s t 11 s e g m e n t s , Y o u r H o n o r , n o t e p i s o d e s . T h e y a r e j u s t -- a n 12 e p i s o d e i s a c o m p l e t e t h i n g o f t h e s a m e t h e m e , a s d e f i n e d i n 13 c o l u m n s 1 t h r o u g h 2 9 o r 2 1 o f t h e p a t e n t . A n d w h e n y o u g e t t o 14 c o lu m n 2 9 , i t s t a r t s t a l k i n g a b o u t s e g m e n t s . 15 J U D G E W A R D : A g a i n , t h e p a n e l , t h e r e i s 16 d i f f i c u l t y i n a t t e m p t i n g t o d e t e r m i n e t h e p r o p e r b o u n d a r y f o r 17 t e r m s l i k e t h i s . G i v e m e t h e p r o p e r b o u n d a r y t h a t y o u w o u l d 18 p r o p o s e t o t h e p a n e l f o r " t h e m e . " H o w d o I d e f i ne w h a t i s 19 w i t h i n a t h e m e a n d o u t s i d e o f a t h e m e ? 20 M R . F E M A L : O k a y . W e l l , I w o u l d s a y i n a t h e m e , 21 l e t ' s s a y y o u h a v e a s e g m e n t -- o r n o t a s e g m e n t -- b u t a n 22 e p i s o d e o f H o u s e o f C a r d s . I t i s a l l a b o u t t h e C o n g r e s s i o n a l 23 W h i p o r H e a d o f t h e H o u s e , H o u s e S pe a k e r , a n d e v e r y s e g m e n t 24 o r e v e r y e p i s o d e a f t e r t h a t i s r e l a t e d t o t h a t s a m e t h e m e . T h e y 25
IPR2014-00070 Patent 8,112,504 24 a r e g o i n g t h r o u g h t h e l i f e o f t h e S p e a k e r o f t h e H o u s e . T h a t 1 w o u l d b e e p i s o d i c . T h a t w o u l d b e e p i s o d e s . 2 I f y o u h a v e n e w s p r o g r a m s , e a c h d a y t h e y a r e 3 u p d a t e d , t h e y a r e p u t a w a y . H o w a r e t h e y r e l a t e d ? Y e s t e r d a y ' s 4 n e w s i s j u s t t h a t , y e s t e r d a y ' s n e w s . S e l d o m d o t h e y e v e r g o 5 b a c k t o i t . A n d , i n f a c t , i n t h e C N N a r t i c l e , a s w e l l a s e v e n i n 6 t h e r a d i o , b e c a u s e o f l i m i t a t i o n s o f s p a c e a t t h i s t i m e , t h e y j u s t 7 t o o k t h e m of f t h e a r c h i v e . 8 J U D G E W A R D : S o u n d e r y o u r d e f i n i t i o n a r e y o u 9 t e l l i n g m e t h a t t h e r e n e e d s t o b e s o m e l e v e l o f c o n s i s t e n c y i n 10 c h a r a c t e r o r p l o t ? 11 M R . F E M A L : T h e r e h a s t o b e s o m e c o n s i s t e n c y . I t 12 c a n ' t b e u n r e l a t e d . 13 J U D G E W A R D : W e l l , C N N u s e s t h e s a m e a n c h o r 14 f o r t h e i r n e w s p r o g r a m . I s t h a t e n o u g h t h e m e c o n s i s t e n c y ? 15 M R . F E M A L : T o h a v e t h e s a m e p e r s o n d o t h e 16 n e w s ? I d o n ' t t h i n k s o . P e o p l e a r e n o t p a r t i c u l a r l y a f t e r a 17 p e r s o n t h a t d o e s i t . I t i s -- i t i s -- n e w s i s d i f f e r e n t e v e r y d a y . 18 T h o s e a r e g o in g t o b e d i f f e r e n t , y o u k n o w , s e g m e n t s . T h e y a r e 19 n o t g o i n g t o b e r e l a t e d . 20 O n e m a y -- 21 J U D G E A N D E R S O N : S o , c o u n s e l -- 22 M R . F E M A L : Y e s . 23 J U D G E A N D E R S O N : C o u n s e l , s o I a m g o i n g t o g o 24 b a c k t o w h a t I a s k e d P e t i t i o n e r ' s c o u n s e l l o r . I s t h e s e r i e s o f 25
IPR2014-00070 Patent 8,112,504 25 e p i s od e s t h e h o o k o n w h i c h y o u w o u l d s a y i n p a r t t h a t 1 e v e r y t h i n g -- t h a t t h e e p i s o d e s m u s t b e r e l a t e d ? 2 M R . F E M A L : I w o u l d s a y y e s , Y o u r H o n o r . 3 J U D G E A N D E R S O N : I s t h a t a y e s ? 4 M R . F E M A L : Y e s . 5 J U D G E A N D E R S O N : O k a y . S o i n t h e 6 s p e c i f i c a t i o n , I a m l o o k i ng a t t h e ' 5 0 4 p a t e n t , c o l u m n 1 9 , 7 b e g i n n i n g a t l i n e 3 5 , i t s a y s t h a t " p r o g r a m m i n g m a y i n c l u d e 8 s e r i a l i z e d s e q u e n c e s o f p r o g r a m s , a g i v e n p r o g r a m s e g m e n t 9 m a y r e p r e s e n t a n e p i s o d e i n a s e r i e s , w h i c h i s s e l e c t e d a s a 10 g r o u p b y t h e s u b s c r i b e r o r " -- a n d i t g o e s on . 11 S o i s n ' t a s e r i e s o f e p i s o d e s s i m p l y s o m e t h i n g t h a t 12 i s s e l e c t e d b y t h e p e r s o n w h o i s m a k i n g t h e c o m p i l a t i o n ? 13 M R . F E M A L : T h e p e r s o n s e l e c t i n g t h e 14 c o m p i l a t i o n , i f y o u a r e g o i n g o f f a n e p i s o d e , i t w o u l d b e a n 15 e p i s o d e o f S e i n f e l d , a n e p i s o d e o f H o u s e of C a r d s , y o u 16 w o u l d n ' t n e c e s s a r i l y g o H o u s e o f C a r d s a n d t h e n t h r o w i n 17 s o m e t h i n g a b o u t c o o k i n g . T h a t w o u l d n ' t b e r e l a t e d . 18 J U D G E A N D E R S O N : W h a t i f I a m i n t e r e s t e d i n 19 b o t h t h o s e s u b j e c t s a n d I d e c i d e a s t h e p e r s o n t h a t i s g o i n g t o 20 m a k e t h i s a v a i l a b l e t o ma k e t h a t m y s e r i e s o f p r o g r a m s , s e r i e s 21 o f e p i s o d e s ? 22 M R . F E M A L : T h o s e a r e n ' t -- 23 J U D G E A N D E R S O N : I s t h a t n o t p r e c l u d e d ? 24
IPR2014-00070 Patent 8,112,504 26 M R . F E M A L : T h o s e a r e n ' t e p i s o d e s , t h o s e a r e 1 s e g m e n t s . A n d y o u m a y h a v e a t o p i c l i k e i n t h e C N N a r t i c l e , 2 s c h o o l , a n d y o u h a v e a b un c h o f u n r e l a t e d t h i n g s a b o u t s c h o o l . 3 O n e m a y b e a b o u t t h e B o a r d o f E d u c a t i o n , a l e g a l m a t t e r . O n e 4 m a y b e a b o u t b u i l d i n g a s c h o o l . 5 J U D G E A N D E R S O N : O k a y . S o l e t m e g e t b a c k t o 6 m y q u e s t i o n . I f s o m e t h i n g i s s e l e c t e d a s a g r o u p b y t h e 7 s u b s c r i b e r , i s t h at n o t a s e r i e s ? I t d o e s n ' t s a y t h a t i t h a s t o b e 8 r e l a t e d . I t j u s t s a y s i t i s s e l e c t e d a s a g r o u p . 9 M R . F E M A L : W e l l , y e s , i f h e s e l e c t s a g r o u p o f 10 c o n s t r u c t i o n t h i n g s , t h a t m a y b e h i s i d e a o f a s e r i e s o f 11 s e g m e n t s . 12 J U D G E A N D E R S O N : S o i s i t t h a t -- is i t t h a t 13 f l e x i b l e , w h a t e v e r t h e s u b s c r i b e r d e c i d e s , i s a s e r i e s o f 14 e p i s o d e s ? 15 M R . F E M A L : I d o n ' t t h i n k i t i s n e c e s s a r i l y u p t o 16 t h e p a r t y t o d e t e r m i n e w h e t h e r h e i s d o i n g a n e p i s o d e o r i f h e i s 17 d o i n g s e g m e n t s . I t h i n k i f h e i s d o i n g s e g m e n t s , s i m p l y s t a r t a t 18 c o l u m n 2 9 i n t h e p a t e n t a n d m o v e f o r w a r d a n d i t d e s c r i b e s 19 s e g m e n t s . 20 Y o u c a n d o w n l o a d n e w s t h i n g s . Y o u c a n d o w n l o a d 21 t h i n g s a b o u t a n i m a l s , a n y t h i n g y o u w a n t . P u t i t i n a g r o u p i f 22 y o u w a n t . T h e r e i s t h a t f l e x i b i l i t y . C l a i m 3 1 d e a l s s p e c i f i c a l l y 23 with e p i s o d e s . 24
IPR2014-00070 Patent 8,112,504 27 A n d t h e n t u r n i n g t o t h e a r g u m e n t s t h a t P e t i t i o n e r 1 m a d e a b o u t t h e e x p e r t i n t h e c a s e , t h e e x p e r t a f t e r e a c h o n e o f 2 t h e s e s e r i e s o f q u e s t i o n s , y o u c a n r e a d t h e t r a n s c r i p t , i s n o t 3 c h a n g i n g h i s t e s t i m o n y . 4 A n d w h a t t h e P e t i t i o n e r c l e v e r l y d i d i s a s k 5 q u e s t i o n s a b o u t s e g m e n t s . B e c a u s e i f y o u l o o k a t t h e 6 r e f e r e n c e , h e i s t a l k i n g a b o u t c o l u m n 2 9 . H e i s o f f o n 7 s e g m e n t s . H e i s n o t t a l k i n g a b o u t e p i s o d e s . H e w a s v e r y 8 c a r e f u l n o t t o m e n t i o n t h e w o r d e p i s o d e s w h e n a s k i n g h i m 9 t h o s e q u e s t i o n s . 10 S o h e w en t o f f o n a t a n g e n t . A n d h e a s k e d 11 q u e s t i o n s a n d I t h i n k M r . N e l s o n a n s w e r e d t r u t h f u l l y . I 12 o b j e c t e d w h e n h e t r i e d t o s a y t h a t s o m e h o w t h i s i s 13 p r e d e t e r m i n e d , e p i s o d e s a t a n U R L , t h i n g s l i k e t h a t , t h e r e i s 14 o b j e c t i o n s i n t h e t r a n s c r i p t . B u t v e r y c l e v e r , w e nt o f f o n t o 15 s e g m e n t s , a n d s e g m e n t s a r e m e n t i o n e d i n t h e p a t e n t . T h e r e i s 16 n o q u e s t i o n a b o u t i t . I f s o m e o n e w a n t s t o p u t s e g m e n t s i n 17 t h e r e , t h e y a r e m o r e t h a n f r e e t o d o s o . A n d t h a t g o e s f o r e a c h 18 o n e o f h i s c i t e s . 19 M r . N e l s o n , a f t e r e a c h o n e , M r . N e l s o n a n s w e r s 20 t r u t h f u l l y w h a t , y o u k n o w , i s h y p o t h e t i c a l . A n d , i n f a c t , t h e 21 P e t i t i o n e r w e n t o f f o n a s k i n g M r . N e l s o n w h e n h e w a n t e d t o 22 d r i v e t h e p o i n t h o m e o n p r e d e t e r m i n e d U R L , w h e t h e r o r n o t 23 h y p o t h e t i c a l l y i f I h a d a n a l g o r i t h m t h a t a l l o w e d y o u t o d o t h a t . 24 A n d M r . N e l s o n s a i d : W h a t a l g o r i t h m ? 25
IPR2014-00070 Patent 8,112,504 28 A n d t h a t ' s t h e p r o b l e m w i t h b o t h o f t h e s e 1 r e f e r e n c e s . T h e y l a c k s t r u c t u r e . T h e y l a c k d i a g r a m s . A n d 2 w h e n a s k e d t h e q u e s t i o n o f t h e i r e x p e r t , i s a n U R L r e f e r r e d t o 3 i n t h e a r t i c l e , P a t r i c k C B C r a d i o , i n a m o m e n t o f cl a r i t y a n d 4 h o n e s t y , M r . S c h m a n d t s a i d t h e r e i s n o r e f e r e n c e t o a n U R L . 5 S o w h a t t h e P e t i t i o n e r i s t r y i n g t o d o w i t h b o t h o f 6 t h e s e a r t i c l e s i s f i l l i n a n i n h e r e n c y a r g u m e n t , m u s t b e 7 i n h e r e n c y b e c a u s e i t i s n o t s h o w n i n s t r u c t u r e . A n d t o f i l l i n 8 w h a t t h e y c l a i m i s a o r d i n a r y p e r s o n s k i l l e d i n t h e a r t , M r . 9 S c h m a n d t t a k e s t h e p o s i t i o n , h e i s a p r o f e s s o r a t M I T t h a t w a s 10 s t e e p e d i n t h e t h i n g , a n d h e r e y o u h a v e i n v e n t o r s t h a t d o n ' t 11 e v e n h a v e a f o r m a l e d u c a t i o n , c a m e u p w i t h t h e i d e a b e c a u s e 12 p e o p l e , o r d i n a r y p e o pl e w o r k e d i n t h i s a r e a a n d t h e y d i d n ' t 13 h a v e a d v a n c e d d e g r e e s . 14 A n d t h i s i s t h e b e g i n n i n g o f t h e I n t e r n e t . A n d s o m e 15 o f t h e r e c e n t t h i n g s t h a t c a m e o n l i n e , N e t s c a p e i n t h e 16 e a r l y-to-m i d ' 9 0 s a f f e c t e d b y m a r k e d e n t r i e s i n t h e f o u n d e r , i n 17 o n e o f t h e f o u n d e r s. A n d E x p l o r e r d i d n ' t c o m e a l o n g u n t i l 18 W i n d o w s 9 5 . A n d t h e n i t w a s j u s t o n e o r t w o p e r c e n t o f t h e 19 I n t e r n e t . 20 A n d s o m e o f t h o s e s t i l l h a d t h e b l u e s c r e e n o f d e a t h 21 w h e n y o u t r i e d t o p u t i n a n a d d r e s s a n d g e t s o m e w h e r e . 22 B e c a u s e I c e r t a i n l y r e m e m b e r t h a t . I g o b a c k f a r e n o u g h t h a t I 23 r e m e m b e r t h e b l u e s c r e e n o f d e a t h a n d a l o t o f t h o s e . 24
IPR2014-00070 Patent 8,112,504 29 J U D G E W A R D : M r . F e m a l , d o y o u h a v e a p r o p o s a l 1 a s t o t h e p e r s o n o f o r d i n a r y s k i l l i n t h e a r t w i t h r e s p e c t t o t h i s 2 c l a i m ? 3 M R . F E M A L : Y e s , w e d o . A n d i t i s t h e d e f i n i t i on 4 t h a t w a s p u t i n b y o u r e x p e r t , M r . N e l s o n . H e i s a p e r s o n w i t h 5 a c o u p l e y e a r s e x p e r i e n c e w o r k i n g i n t h e f i e l d , m a y b e h a v i n g a 6 c o m p u t e r -- 7 J U D G E W A R D : W o r k i n g i n w h a t f i e l d , M r . F e m a l ? 8 M R . F E M A L : W o r k i n g j u s t w i t h t h e I n t e r n e t , 9 p l a y i n g a r o u n d w i t h it , a n d a l s o m i g h t h a v e a l i t t l e b i t o f 10 c o m p u t e r s c i e n c e b a c k g r o u n d , m a y . B u t i t i s n o t a h i g h l e v e l i n 11 ' 9 5 o r ' 9 6 . 12 J U D G E A N D E R S O N : S o , c o u n s e l , w i t h r e s p e c t t o 13 t h e C N N a r g u m e n t , g r o u n d , s o t h a t ' s a n o b v i o u s n e s s c h a l l e n g e . 14 W h a t d o e s y o u r e x p e r t s a y -- a n d I l o o k e d a l i t t l e b i t -- but 15 d o e s h e s a y a n y t h i n g t o s u g g e s t t h a t w e c o u l d g o l o o k a t t h a t 16 s a y s t h a t t h e c o m p u t e r -- t h a t t h e -- s o m e o f t h e h a r d w a r e , t h e 17 d a t a s t o r a g e s e r v e r s , c o m m u n i c a t i o n s i n t e r f a c e s , p r o c e s s o r s , 18 t h a t t h o s e a r e n o t p r e s e n t o r w o u l d n o t b e u n d e r s t o o d t o b e 19 p r e s e n t b y a p e r s o n o f o r d i n a r y s k i l l i n t h e a r t w i t h r e s p e c t t o 20 t h e C N N r e f e r e n c e ? 21 M R . F E M A L : W i t h a l l d u e r e s p e c t , i n t h e C N N 22 r e f e r e n c e , y o u h a v e a d i g i t a l , a u d i o , v i d e o , a n d d i s t r i b u t i o n 23 s y s t e m t h a t u t i l i z e s a s i g n a l c a p t u r e co m p r e s s i o n . T h e r e i s 24
IPR2014-00070 Patent 8,112,504 30 e n c o d i n g , i f y o u l o o k a t t h e f r o n t e n d o f t h e d i a g r a m , w h i c h 1 t h e y d o n ' t s h o w t h e e n t i r e t h i n g . 2 T h i s i s a v e r y a d v a n c e d t h i n g w h e r e y o u t r y i n g t o 3 t a k e a n a l o g v i d e o , w h i c h i s a v e r y h u g e f i l e , c o n v e r t i t t o a 4 d i g i t a l f i l e , r e q u i r i n g ex t e n s i v e t h i n g s n o t r e a l l y u s e d b y t h e 5 o r d i n a r y p e r s o n s k i l l e d i n t h e a r t a t t h e t i m e . Y o u a r e t a l k i n g 6 s a t e l l i t e . Y o u a r e t a l k i n g e n c o d i n g . Y o u a r e t a l k i n g m a s s i v e 7 f i l e s . 8 I t h i n k i n t h e a r t i c l e , C N N a r t i c l e m e n t i o n s 2 7 9 t e r a b y t e s f o r a n e x a m p l e o f t r y in g t o s t o r e a f e w v i d e o f i l e s . 10 A n d t h e v i d e o f i l e s -- 11 J U D G E A N D E R S O N : B u t m y q u e s t i o n , m y 12 q u e s t i o n i s M r . S c h m a n d t s e e m s t o s a y t h a t t h e h a r d w a r e i s 13 t h e r e . Y o u d o n ' t s e e m t o a r g u e i n y o u r b r i e f t h a t t h e h a r d w a r e 14 i s n ' t . A n d s o t h i s i s y o u r o p p o r t u n i t y t o t e l l u s t h a t i t i s n ' t . 15 A n d I g a t h e r y o u a r e s a y i n g t h a t r i g h t n o w . 16 M y q u e s t i o n i s d o e s y o u r e x p e r t s u p p o r t t h a t 17 position? 18 M R . F E M A L : T h e e x p e r t i n h i s e x p e r t r e p o r t d o e s , 19 d o e s s u p p o r t t h a t t h e e l e m e n t s o f t h e c l a i m s a r e n o t t h e r e , c l a i m 20 3 1 . E s s e nt i a l l y y o u d o n ' t h a v e a c o m p i l a t i o n f i l e . Y o u d o n ' t 21 h a v e a n u p d a t i n g o f a s i n g l e f i l e t h a t h a s a l l t h e e p i s o d e s i n i t . 22 T h e C N N i s q u i t e c l e a r t h a t e a c h d a y y o u h a v e a 23 b r a n d n e w -- i f t h e y w a n t t o c a l l t h a t a c o m p i l a t i o n f i l e -- t h e y 24 h a v e a b r a n d n e w c o nt e n t s f i l e u n r e l a t e d t o t h e o t h e r d a y s . 25
IPR2014-00070 Patent 8,112,504 31 E a c h d a y i s a b r a n d n e w d a y i n t h e C N N . A n d a s f a r a s 1 h a r d w a r e g o e s -- 2 J U D G E W A R D : H o w d o y o u r e s p o n d t o t h e 3 P e t i t i o n e r ' s a r g u m e n t w i t h r e s p e c t t o t h a t u p d a t e d c o m p i l a t i o n 4 f i l e , t h a t i t c a n b e u p d a t e d i n t h e s e n se t h a t t h e d a t a c h a n g e s , a s 5 l o n g a s i t i s t h e c o m p i l a t i o n f i l e ? 6 M R . F E M A L : T h e r e i s n o c o m p i l a t i o n f i l e i n C N N , 7 z e r o . 8 J U D G E W A R D : Y o u d o n ' t a g r e e t h a t c o n t e n t s . h t m l 9 i s a c o m p i l a t i o n f i l e ? 10 M R . F E M A L : A b s o l u t e l y n o t . A n d , m o r e o v e r , t o 11 e v e n g e t t o t he f i n a l t h i n g , y o u a r e t a l k i n g h a r d w a r e n o w , t h a t 12 d i a g r a m s h o w i n g t h e c o n t e n t s f i l e , i f y o u g o d o w n t h e r o w 13 t h e r e , t h e r e i s a f i l e a f t e r t h e c o n t e n t s . I f y o u f o l l o w t h e l i n e 14 d o w n t o w h e r e i t i s g o i n g t o b e d i s t r i b u t e d o u t , t a l k i n g a b o u t 15 t h e m s h o o t i n g t h e ms e l v e s i n t h e f o o t , y o u h a v e a m e r g e T C . C 16 f i l e . W h a t i n t h e h e c k i s t h a t ? 17 S p e c i a l s o f t w a r e t o t r y t o g e t y o u t o a p o i n t w h e r e 18 y o u c a n d i s t r i b u t e t h e c o n t e n t . I h a v e n o i d e a w h a t t h a t i s . I t 19 i s n o t e x p l a i n e d i n t h e C N N a r t i c l e . 20 I n f a c t , t h e a r t i c l e i s re p l e t e w i t h t a l k i n g a b o u t 21 s p e c i a l i z e d s o f t w a r e , s p e c i a l i z e d s t r u c t u r e t o g e t t o y o u r v i d e o 22 t h a t i s b r o a d c a s t o u t t o a w e b . 23 J U D G E W A R D : B u t d o e s c l a i m 3 1 p r o h i b i t t h e u s e 24 o f s u c h s o f t w a r e o r h a r d w a r e ? 25
IPR2014-00070 Patent 8,112,504 32 M R . F E M A L : C l a i m 3 1 h a s n o t h i n g t o d o w i t h 1 e n c o d i n g v i d e o f r o m w h a t I c a n s e e f r o m a s a t e l l i t e a n d h a v i n g 2 s p e c i a l p r o x y s e r v e r s o n t h e p l a y e r e n d . 3 J U D G E W A R D : B u t y o u w o u l d a g r e e t h a t a s l o n g 4 a s I m e e t t h e e l e m e n t s o f c l a i m 3 1 , a n d m a y i n a d d i t i o n e n c o d e 5 v i d e o o r d o o t h e r t h i n g s -- 6 M R . F E M A L : I f y o u m ee t a l l t h e e l e m e n t s o f c l a i m 7 3 1 , o b v i o u s l y y o u w o u l d h a v e i t , b u t t h e r e i s n o m e e t i n g o f t h e 8 c l a i m l a n g u a g e . I t i s j u s t s i m p l y n o t t h e r e . 9 J U D G E A N D E R S O N : D o y o u h a v e a d i s p u t e a t t h i s 10 t i m e w i t h t h e c o n s t r u c t i o n w e g a v e t o c o m p i l a t i o n f i l e i n t h e 11 d e c i s io n i n s t i t u t e d , t h a t b e i n g t h a t s i m p l y a c o m p i l a t i o n f i l e i s 12 a f i l e t h a t c o n t a i n s e p i s o d e i n f o r m a t i o n ? 13 M R . F E M A L : Y e s , e p i s o d e i n f o r m a t i o n . 14 J U D G E A N D E R S O N : Y o u d o n ' t t h i n k t h a t s h o u l d 15 b e p a r t o f t h e c o n s t r u c t i o n ? 16 M R . F E M A L : Y o u k n o w , t h e c o m p i l a t i on f i l e 17 w o u l d c o n t a i n e p i s o d e i n f o r m a t i o n . H e r e w i t h e i t h e r t h e C N N 18 o r C B C r e f e r e n c e s , t h e r e i s n o c o m p i l a t i o n f i l e . A l s o y o u w i l l 19 n o t f i n d t h e w o r d " u p d a t i n g , " b e c a u s e i t i s n o t u p d a t e d . O n c e i t 20 i s f i x e d , i t i s a f f i x e d . T h e r e i s n o c o m p i l a t i o n . T h e y do n ' t 21 c o m p i l a t e a n y t h i n g . 22 E a c h d a y i s a b r a n d n e w d a y i n t h e C N N N e w s . 23 A n d e a c h d a y o n t h e r a d i o f o r t h e Q u i r k s s e r i e s , a n h o u r s h o w 24 b r o k e n i n t o s e g m e n t s , i t i s t h e s a m e s h o w . A l l o f a s u d d e n y o u 25
IPR2014-00070 Patent 8,112,504 33 t a k e t h e s a m e s h o w t h a t i s a n h o u r s h o w , y o u b r e a k i t i n to 1 s e g m e n t s , n o w i t b e c o m e s a n e p i s o d i c s h o w ? 2 J U D G E A N D E R S O N : S o , a s I u n d e r s t a n d i t , y o u 3 d o n ' t h a v e -- y o u d o n ' t h a v e a n y d i s p u t e w i t h t h e c u r r e n t 4 c o n s t r u c t i o n , w i t h t h e p r e l i m i n a r y c o n s t r u c t i o n o f " c o m p i l a t i o n 5 f i l e , " y o u s i m p l y a r e s a y i n g t h a t b o t h C N N a n d t h e C B C d o n ' t 6 c o n t a i n e p i s o d e i n f o r m a t i o n , t h e y c o n t a i n s e g m e n t i n f o r m a t i o n ; 7 i s t h a t r i g h t ? 8 M R . F E M A L : T h e y c o n t a i n s e g m e n t i n f o r m a t i o n , 9 Y o u r H o n o r , a n d t h e y a l s o l a c k a n y c o m p i l a t i o n . 10 J U D G E S N E D D E N : L e t m e s e e i f I u n d e r s t a n d . 11 T h e w a y I u n d e r st a n d y o u r a r g u m e n t , t h e w a y I r e a d y o u r 12 r e s p o n s e i s t h a t y o u a r e e s s e n t i a l l y a r g u i n g t h a t t h e c l a i m 13 r e q u i r e s o r r e f e r e n c e s e p i s o d e s . A n d w h a t i s d i s c l o s e d i n t h e 14 C N N r e f e r e n c e , f o r e x a m p l e , i s n o t e p i s o d e s , r a t h e r , w h a t i s 15 b e i n g u p l o a d e d o r p u t o n t h e C N N w e b p a g e a r e s e g m e n t s o f a 16 s i n g l e e p i s o d e . A n d t h a t i s d o n e b e c a u s e t h e s e f i l e s a r e l a r g e . 17 H a v e I g o t i t s t r a i g h t s o f a r ? 18 M R . F E M A L : H e i s u p l o a d i n g a t w o- t o 19 t h r e e-m i n u t e s e g m e n t o f t h e n e w s b r o a d c a s t . 20 J U D G E S N E D D E N : T h e n e w s b r o a d c a s t . A n d t h e 21 r e a s o n w h y i t h a s t o b e b r o k e n u p i n t o t h e s e s u c h s e g m e n t s i s 22 b e c a u s e t h e e n t i r e b r o a d c a s t c a n n o t b e l o a d e d b e c a u s e o f t h e 23 s i z e o f t h e f i l e s ? 24
IPR2014-00070 Patent 8,112,504 34 M R . F E M A L : W e l l , y o u c a n ' t u p l o a d b e c a u s e o f 1 t h e s i z e o f t h e f i l e , t h a t ' s c o r r e c t , Y o u r H o n o r . T h e a r t i c l e s a ys 2 s o . 3 J U D G E S N E D D E N : S o t h e y a r e b r o k e n u p i n t o 4 s e g m e n t s t h a t a r e t h e n a v a i l a b l e , y o u k n o w , o n t h e w e b s i t e , b u t 5 t h i s i s n o t a c o m p i l a t i o n f i l e b e c a u s e e v e r y d a y t h i s e n t i r e p a g e 6 i s r e p l a c e d ? 7 M R . F E M A L : I t i s r e p l a c e d e v e r y d a y , Y o u r H o n o r . 8 J U D G E S N ED D E N : S o y o u c a n ' t a c c e s s p r e v i o u s 9 e p i s o d e s , o n l y s e g m e n t s o f a c u r r e n t e p i s o d e ? 10 M R . F E M A L : Y o u w o u l d h a v e t o g o b a c k a n d t r y 11 t o f i n d w h a t e v e r t h a t U R L w a s i n t h e U R L o f t h e C N N 12 b r o a d c a s t , u p l o a d t h a t t o f i n d o u t w h a t t h e c o n t e n t i s , b e c a u s e 13 t h e r e i s n 't a s i n g l e c o m p i l a t i o n f i l e . 14 J U D G E S N E D D E N : S o t h e c o m p i l a t i o n f i l e w o u l d 15 r e q u i r e o n e o r m o r e e p i s o d e s c o n t a i n e d i n t h a t f i l e ? 16 M R . F E M A L : Y e s . F o r e x a m p l e , i f y o u -- i f y o u 17 a r e e x p e r i e n c e d w i t h N e t f l i x o r s o m e t h i n g l i k e t h a t , y o u g o t o 18 N e t f l i x . 19 J U DG E S N E D D E N : I u n d e r s t a n d t h a t . 20 M R . F E M A L : A l l t h e e p i s o d e s a r e l i s t e d t h e r e , a l l 21 t h e s e r i e s a r e l i s t e d , e v e r y y e a r , e v e r y e p i s o d e . T h a t ' s a 22 c o m p i l a t i o n f i l e , y o u k n o w w h e r e e v e r y t h i n g i s . 23
IPR2014-00070 Patent 8,112,504 35 W i t h C N N y o u h a v e t o g o b a c k a n d u p l o a d w h a t e v e r 1 d a y i t i s a nd y o u h a v e t o k n o w w h a t t h e U R L w a s f o r t h a t 2 s e g m e n t o r t h a t n e w s c a s t f o r t h a t d a y . 3 A n d e v e r y d a y a b r a n d n e w c o n t e n t s f i l e i s c r e a t e d . 4 I t h a s n o r e l a t i o n s h i p t o t h e o t h e r c o n t e n t f i l e s . A n d t h a t , a s 5 f a r a s t h e p a t e n t i s t a l k i n g a b o u t , i s n o t a r e l a t ed e p i s o d e . 6 T h e r e i s n o r e l a t i o n s h i p . Y o u k n o w , d i f f e r e n t c o n t e n t f i l e s , 7 d i f f e r e n t t h i n g s . 8 J U D G E S N E D D E N : W e l l , t h e y a r e r e l a t e d i n t h e 9 s e n s e t h a t t h e y a r e t e m p o r a l l y r e l a t e d , t h e y a r e o n t h e s a m e 10 d a y ? 11 M R . F E M A L : W e l l , t h a t ' s t h e d e f i n i t i o n t h e 12 P e t it i o n e r u s e d t o t r y t o p u l l a n i n h e r e n c y a r g u m e n t . 13 J U D G E W A R D : I w o u l d l i k e t o t r y t o u n d e r s t a n d 14 t h e s t a t e m e n t y o u m a d e i n y o u r r e s p o n s e . Y o u t o l d u s t h a t t h e 15 B o a r d i m p r o p e r l y i m p o r t e d a c o n c e p t o f a s e g m e n t i n t o o u r 16 d e f i n i t i o n o f e p i s o d e . A n d I w o u l d li k e t o u n d e r s t a n d y o u r 17 d i s t i n c t i o n b e t w e e n a p r o g r a m a n d a s e g m e n t . 18 M R . F E M A L : O n t h e e p i s o d e d e f i n i t i o n , y o u p u l l e d 19 i n w h a t i s r e f e r r e d t o i n t h e p a t e n t a f t e r c o l u m n 2 9 , t a l k i n g 20 a b o u t s e g m e n t s , a n d s o m e o n e h a v i n g a g r o u p o f r e l a t e d o r 21 u n r e l a t e d t h i n g s a b o u t f i s h i n g , f o r e x a m p l e . I t h a s a b u n c h o f 22 a r t i c l e s . T h a t ' s f i n e . T h e r e i s n o t h i n g w r o n g w i t h t h a t . 23 A s f a r a s w e ' r e c o n c e r n e d , n e w s , n e w s t h i n g s a r e 24 u n r e l a t e d , p u l l i n n e w s i n a g r o u p , w h a t e v e r y o u w a n t t o p u l l i n 25
IPR2014-00070 Patent 8,112,504 36 a s s e g m e n t s o r p r o g r a m s a n d t h e p ro g r a m s , d u e t o t h e s i z e i n 1 t h e C N N a r t i c l e , y o u c o u l d n ' t h a v e a w h o l e p r e s e n t a t i o n a t o n c e 2 b e c a u s e y o u c o u l d n ' t d o w n l o a d i t . 3 A n d i f y o u l o o k a t t h e s t r u c t u r e s h o w n , t h e y h a v e 4 s p e c i a l p r o x y s e r v e r s . A n d t h i n g s a r e d o w n l o a d e d i n t h e 5 e v e n i n g b e c a u s e t h e f il e s a r e s o b i g , y o u c a n ' t r e a l l y s h o w 6 t h o s e . I n o t h e r w o r d s , i f a p e r s o n a s c a l l e d f o r i n t h i s p a t e n t , 7 e s p e c i a l l y w h e n y o u g e t d o w n t o t h e e n d o f t h e p a t e n t , A B C , 8 a n d r e q u e s t s t h o s e t h i n g s , t h o s e e l e m e n t s , y o u c a n ' t d o w i t h 9 C N N . Y o u h a v e t o d o w n l o a d t h e n i g h t b e f o r e t h e s e g m e n t s . 10 A n d i f y o u l o o k a t t h a t s t r u c t u r e s h o w n i n t h a t d r a w i n g , y e s , i t 11 s h o w s a w e b s e r v e r , a n d t h e n i t s h o w s t h e I n t e r n e t , b u t t h e n i t 12 s h o w s a b u n c h o f p r o x y s e r v e r s b e c a u s e t h e o n l y p l a c e t h a t t h e 13 C N N a r t i c l e s w e n t t o a r e s c h o o l s t h at c o u l d a f f o r d p r o x y 14 s e r v e r s a n d v e r y e x p e n s i v e b o a r d s t h a t w o u l d a l l o w y o u t o p l a y 15 t h e v i d e o . 16 B e c a u s e t h e y a r e t a l k i n g a b o u t M P E G f i l e s , w h i c h 17 a r e v e r y h u g e a t t h a t t i m e . T h e y a r e n o t t a l k i n g a b o u t M P 3 . 18 T h e y h a v e n ' t c o m e a l o n g y e t . 19 J U D G E W A R D : I a m s t i l l t r y i n g t o u n d e r s t a n d . 20 A n d t h e g i s t o f m y q u e s t i o n i s t h a t o u r d e f i n i t i o n o f e p i s o d e i n 21 s h o r t i s t h a t a n e p i s o d e i s a s e r i e s o f r e l a t e d s e g m e n t s . A n d 22 w h a t y o u p r o p o s e d i s t h a t a n e p i s o d e i s a s e r i e s o f r e l a t e d 23 p r o g r a m s . 24
IPR2014-00070 Patent 8,112,504 37 I a m t r y i n g t o u n d e r s t a n d w h a t t h e d i f f e r e n c e i s 1 b e t w e e n a p r o g r a m a n d a s e g m e n t i n t h o s e t w o c o n s t r u c t i o n s ? 2 M R . F E M A L : W e l l , i n t h a t p a r t i c u l a r c o n t e x t t h e 3 p r o g r a m i s t h e e n t i r e p r o g r a m , i n o t h e r w o r d s , t h e e n t i r e 4 e p i s o d e 3 3 o f S e i n f e l d , s e a s o n 1 , o r w h a t e v e r . 5 J U D G E W A R D : A n d a s e g m e n t o f t h a t S e i n f e l d 6 e p i s o d e w o u l d b e t h e f i r s t f i v e m i n u t e s ? 7 M R . F E M A L : W o u l d b e t h e f i r s t f i v e m i n u t e s , t h e 8 m i d d l e f i v e , t e n m i n u t e s , o r , y o u k n o w , t h e t a i l e n d o f 3 0 9 m i n u t e s b e f o r e t h e c o m m e r c i a l w o u l d b e s e g m e n t s . 10 J U D G E W A R D : B u t t h o s e s e gm e n t s a r e 11 c o m p o n e n t s o f a n e p i s o d e , c o r r e c t ? 12 M R . F E M A L : C a n b e c o m p o n e n t s o f a n e p i s o d e , i f 13 y o u a r e t a l k i n g a b o u t a n e p i s o d e . 14 J U D G E W A R D : S o i f I h a d e n o u g h s e g m e n t s , I 15 c o u l d h a v e m u l t i p l e e p i s o d e s ? 16 M R . F E M A L : A p e r s o n m a y c h o o s e t o d o w n l o a d 17 p r o b ab l y -- i n S e i n f e l d , y o u c a n d o w n l o a d t h e w h o l e t h i n g , 18 obviously, the whole episode, but if you want to break it into 19 s e g m e n t s , y o u c a n t a k e a n e p i s o d e a n d b r e a k i t i n t o s e g m e n t s . 20 A n d I t h i n k t h a t i s w h a t i s c o n f u s i n g a b o u t t h e P e t i t i o n e r ' s 21 c l a i m t h a t t h e se l i t t l e i n d i v i d u a l s e g m e n t s a r e e p i s o d e s . 22 J U D G E S N E D D E N : W h a t d o y o u s u g g e s t t h e y a r e ? 23 T h e y a r e s e g m e n t s o f a p r o g r a m ? 24 M R . F E M A L : P a r d o n ? 25
IPR2014-00070 Patent 8,112,504 38 J U D G E S N E D D E N : W h a t d o y o u s u g g e s t t h e y a r e ? 1 T h e y a r e s e g m e n t s o f a p r o g r a m ? 2 M R . F E M A L : T h e y a r e u n r e l at e d , u n r e l a t e d 3 s n i p p e t s o f t h e n e w s . I h a v e a n a r t i c l e a b o u t s a v i n g t h e w h a l e s . 4 I h a v e a n a r t i c l e a b o u t t h e t e r r i b l e w e a t h e r i n C a l i f o r n i a . 5 J U D G E S N E D D E N : T h e y a r e r e l a t e d i n t h a t t h e y 6 w e r e p r e s e n t e d t o g e t h e r i n t h e w o r l d n e w s p r o g r a m ? 7 M R . F E M A L : Th e y a r e g r o u p e d t o g e t h e r a s 8 s e g m e n t s , b u t t h e y a r e n o t e p i s o d i c , h a v e n o t h e m e . W h a t i s 9 t h e t h e m e b e t w e e n t h e w h a l e s b e i n g s a v e d a n d a s t o r m i n 10 C a l i f o r n i a ? 11 J U D G E A N D E R S O N : S o w h a t p a r t o f c o l u m n 2 9 12 a r e y o u p o i n t i n g t o t h a t s a y s s e g m e n t s a r e s o m e h o w d i ff e r e n t 13 f r o m e p i s o d e s ? 14 M R . F E M A L : L e t m e l o o k a t m y n o t e s h e r e , Y o u r 15 H o n o r . 16 J U D G E S N E D D E N : F o r u s i t i s a l i t t l e d i f f e r e n t . 17 N o w t h a t w e m a y h a v e a n u n d e r s t a n d i n g , i s t h e r e -- w h a t 18 e v i d e n c e o n r e c o r d w o u l d s u p p o r t t h a t , y o u r d e f i n i t i o n , y o u r 19 c o n s t r u c t io n ? 20 M R . F E M A L : W e l l , Y o u r H o n o r , b a s i c a l l y g o i n g 21 f r o m c o l u m n s u p t h r o u g h c o l u m n 2 1 , i t t a l k s a b o u t e p i s o d e s a n d 22 d e f i n e s w h a t e p i s o d e i s . A n d , i n p a r t i c u l a r , y o u h a v e c o l u m n 6 , 23 l e t ' s s e e h e r e , c o l u m n 6 s t a r t i n g a t l i n e 6 0 , y o u h a v e t h e h o s t 24 s e r v e r 1 0 1 pe r i o d i c a l l y t r a n s m i t s a d o w n l o a d c o m p i l a t i o n f i l e 25
IPR2014-00070 Patent 8,112,504 39 1 4 5 u p o n r e c e i v i n g r e q u e s t f r o m t h e p l a y e r 1 0 3 . T h e f i l e 1 4 5 i s 1 p l a c e d i n a p r e d e t e r m i n e d F T P d o w n l o a d f i l e d i r e c t o r y a n d 2 a s s i g n e d a f i l e n a m e k n o w n t o t h e p l a y e r 1 0 3 . A t a t i m e 3 d e t e r m i n e d b y p l a y e r 1 0 3 mo n i t o r i n g t h e t i m e o f d a y c l o c k 1 0 6 , 4 a d i a l-u p c o n n e c t i o n i s e s t a b l i s h e d v i a t h e s e r v i c e p r o v i d e r , a n d 5 t h e I n t e r n e t , a n d t h e s e r v e r d o w n l o a d s c o m p i l a t i o n f i l e 1 4 5 . I t 6 i s t r a n s f e r r e d t o t h e p r o g r a m d a t a s t o r e 1 0 7 i n t h e p l a y e r . A n d 7 t h e n a p e r s o n c a n l o o k u p i n t h e c o m p i l a t i o n f i l e w h a t , w h a t 8 e p i s o d e s t h a t h e i s i n t e r e s t e d i n . A t t h e t o p o f c o l u m n 7 , a n d 9 t h e n g o i n g o n t o l i n e 1 0 -- 10 J U D G E S N E D D E N : S o t h a t c o m p i l a t i o n f i l e w o u l d 11 c o n t a i n e p i s o d e s s e l e c t e d b y t h e u s e r o r -- 12 M R . F E M A L : T h a t c o m p i l a t i o n f i l e c o u l d c o n t a i n 13 w h a t e v e r t h e u s e r w a n t s t o p u t i n a c o m p i l a t i o n f i l e , b u t i t h a s 14 a l l o f t h e i n f o r m a t i o n t h a t h e i s l o o k i n g f o r . 15 A n d t h e n I g u e s s t o g o b a c k t o a n o t h e r t h i n g a b o u t 16 t h e m e , J u d g e W a r d , y o u w e r e a s k i n g a b o u t t h e m e . Y o u c a n a s k 17 y o u r s e l f a q u e st i o n d o e s i t m a t t e r w h i c h o r d e r y o u w a t c h t h e 18 n e w s p r o g r a m i n ? I f y o u w a t c h t h e v e g e t a b l e f i r s t , i s t h a t 19 b e t t e r t h a n w a t c h i n g J u p i t e r ? I f i t d o e s n ' t m a t t e r , t h e n i t i s 20 p r o b a b l y n o t a n e p i s o d e i n a s e r i e s o f e p i s o d e s . T h e r e i s n o 21 r e l a t i o n s h i p t o t h e o r d er t h a t t h e y a r e i n . I t w o u l d b e h i g h l y 22 e p i s o d i c a t t h a t p o i n t . 23 J U D G E W A R D : S o a r e y o u s a y i n g a n e p i s o d e 24 i n d i c a t e s a s e r i e s t h a t m u s t b e w a t c h e d i n a s p e c i f i c o r d e r ? 25
IPR2014-00070 Patent 8,112,504 40 M R . F E M A L : Y o u c a n w a t c h t h e m o u t o f o r d e r i f 1 y o u w o u l d l i k e t o , Y o u r H o n o r , b u t t h e re i s a g i v e n o r d e r t o 2 e p i s o d e s . T y p i c a l l y , f o r e x a m p l e , i f y o u j u m p i n a t H o u s e o f 3 C a r d s a t e p i s o d e 1 2 , y o u h a v e n o i d e a w h a t i s g o i n g o n ; 4 t h e m a t i c a l l y , c o m p l e t e l y l o s t t h e t h r e a d . Y o u h a v e t o g o b a c k 5 a n d s t a r t w a t c h i n g e p i s o d e s 1 t h r o u g h 1 1 t o f i n d o u t w h a t t h e 6 h e c k 1 2 i s r e l a t e d t o . 7 J U D G E W A R D : W h a t a b o u t a s h o w l i k e T h e 8 Twilight Zone, where each show is independent? 9 M R . F E M A L : I t h i n k t h o s e a r e t o t a l l y i n d e p e n d e n t , 10 Y o u r H o n o r . 11 J U D G E W A R D : T w i l i g h t Z o n e , n o e p i s o d e s i n 12 Twilight Zone? 13 M R . F E M AL : I w o u l d n ' t c a l l i t n e c e s s a r i l y 14 e p i s o d i c . T h e y a r e a l l d i f f e r e n t , n o t a s i n g l e T w i l i g h t Z o n e a m 15 I a w a r e o f f o l l o w s a n o t h e r o n e . O n e y o u h a v e p e o p l e b e i n g 16 e a t e n a l i v e , y o u k n o w , a t a c l u b a n d a n o t h e r o n e t a l k i n g a b o u t , 17 y o u k n o w , s o m e i n t e r s t e l l a r r a d i at i o n h i t t i n g t h e e a r t h o r 18 s o m e t h i n g . I t i s a b u n c h o f u n r e l a t e d p r o g r a m s . 19 T h e y a r e p r o g r a m s , t h o u g h . A n d y o u c a n d o w n l o a d 20 s e g m e n t s o f i t . I f y o u h a v e C N N , y o u h a v e a l a r g e v i d e o f i l e , 21 b u t , y o u k n o w , g e t t i n g b a c k t o t h e c l a i m l a n g u a g e , w h i c h I 22 t h i n k i s w h e r e i t i s r e a l l y a t , w h a t I f o u n d s p e c i o u s i n s o m e o f 23 t h e a r g u m e n t s b y t h e i r e x p e r t , a s w e l l a s i n t h e b r i e f s , i s s i m p l y 24 t h e y a r e t r y i n g t o f i g u r e i n w h a t i s n ' t s h o w n . 25
IPR2014-00070 Patent 8,112,504 41 A n d f o r a n t i c i p a t i o n a s Y o u r H o n o r s j u s t m e n t i o n e d 1 a w h i l e a g o , f o r a n t i c i p a t i o n , yo u h a v e t o s h o w e a c h a n d e v e r y 2 e l e m e n t . A n d i f y o u c a n ' t s h o w e a c h a n d e v e r y e l e m e n t , l i k e 3 D r . S c h m a n d t s a i d , I d o n ' t k n o w w h e r e a U R L i s o r w h a t k i n d 4 o f U R L i s i n C B C r a d i o , w h e n a s k e d t h a t q u e s t i o n i n h i s 5 d e p o s i t i o n b y m e . 6 H e s i m p l y s a i d : I h a v e n o id e a w h a t t h e U R L w o u l d 7 b e . W e l l , i f h e h a s n o i d e a w h a t t h e U R L i s g o i n g t o b e , h o w 8 c a n y o u h a v e a p r e d e t e r m i n e d U R L ? H o w c o u l d y o u h a v e a n y 9 o f t h e s t r u c t u r e a s s h o w n i n c l a i m 3 1 ? 10 A n d , m o r e o v e r , c l a i m 3 1 c a l l s f o r v e r y s p e c i f i c 11 s t r u c t u r e . A n d t h a t s t ru c t u r e i s c l e a r l y n o t s h o w n i n e i t h e r o n e 12 o f t h e r e f e r e n c e s . A n d I t h i n k s o m e o f t h e l a n g u a g e t h a t i s v e r y 13 i m p o r t a n t h e r e , i f y o u g o t o t h e c l a i m l a n g u a g e , i t s t a r t s o u t 14 w i t h o n p a g e 3 o f o u r p r e s e n t a t i o n , a s e r v e r f o r d i s s e m i n a t i n g a 15 s e r i e s o f e p i s o d e s re p r e s e n t e d b y a m e d i a f i l e s v i a t h e I n t e r n e t , 16 a s s a i d e p i s o d e b e c o m e s a v a i l a b l e . 17 A n d a s I s a i d a s f a r a s e p i s o d i c g o e s , i t m e a n s t h a t 18 y o u h a v e t h e m e-r e l a t e d e p i s o d e s . A n d t h e a p p a r a t u s a p p l i e s 19 o n e o r m o r e d a t a s t o r a g e s e r v i c e . W e l l , i n C B C , I h a v e n o id e a 20 w h a t d a t a s t o r a g e s t h e y h a v e o r d o n ' t h a v e . A n d o n e o r m o r e 21 c o m m u n i c a t i o n i n t e r f a c e s c o n n e c t e d t o t h e I n t e r n e t . A n d , 22 a g a i n , w h e n a s k e d t h o s e q u e s t i o n s o f M r . S c h m a n d t , t h e r e i s n o 23 a n s w e r b e c a u s e t h e r e i s n o s t r u c t u r e s h o w n , n o d r a w i n g s h o w n 24 a s a d m i t te d b y t h e P e t i t i o n e r . 25
IPR2014-00070 Patent 8,112,504 42 J U D G E W A R D : M r . F e m a l , a r e y o u a r g u i n g t h a t a 1 p e r s o n o f o r d i n a r y s k i l l i n t h e a r t , t a k i n g a l o o k i n g a t t h e 1 0 3 2 c h a l l e n g e , a p e r s o n o f o r d i n a r y s k i l l i n t h e a r t , a n d I w i l l u s e 3 y o u r p r o p o s e d d e f i n i t i o n , i n d i v i d u a l w i t h a n u m b e r o f ye a r s o f 4 e x p e r i e n c e w o r k i n g o n w e b s i t e s . 5 M R . F E M A L : R i g h t . 6 J U D G E W A R D : R e a d i n g t h e d i s c l o s u r e , t h i s i s t h e 7 s t a t e m e n t f r o m t h e C N N N e w s r o o m d i s c l o s u r e , " I n t e r n e t 8 N e w s r o o m i s a c c e s s e d v i a t h e W o r l d W i d e W e b . " I s i t y o u r 9 a r g u m e n t t h a t a p e r s o n o f s k i l l i n t h e a r t r e a d i n g t h a t w o u l d n o t 10 u n d e r s t a n d t h a t t h a t w o u l d r e q u i r e a s e r v e r w i t h a 11 c o m m u n i c a t i o n i n t e r f a c e a n d a p r o c e s s o r ? 12 M R . F E M A L : A p e r s o n o f o r d i n a r y s k i l l w o u l d 13 r e a l i z e t h a t t h e r e i s a -- w e l l , a p r o c e s s o r , a t l e a s t o n t h e c l i e n t 14 s i d e , o b v i o u sl y , t o i n q u i r e o n t h e w e b . B u t w h a t s t r u c t u r e i s 15 b e h i n d , w h a t t h e h o s t s e r v e r i s c o m p r i s e d o f , y o u w o u l d h a v e 16 n o i d e a . 17 J U D G E W A R D : B u t h e w o u l d n ' t k n o w t h e r e w a s a 18 s e r v e r , y o u a g r e e w i t h t h a t ? 19 M R . F E M A L : H e w o u l d k n o w t h e r e i s a s e r v e r 20 s o m e w h e r e . 21 JU D G E W A R D : A n d w o u l d n ' t t h a t s e r v e r n e e d t o 22 h a v e a c o m m u n i c a t i o n i n t e r f a c e f o r h i s c l i e n t d e v i c e t o b e a b l e 23 t o a c c e s s i n f o r m a t i o n o n t h a t s e r v e r ? 24
IPR2014-00070 Patent 8,112,504 43 M R . F E M A L : H e d o e s n ' t n e c e s s a r i l y k n o w e x a c t l y 1 w h a t i s b e h i n d t h e c u r t a i n . T o h i m i t i s , i t i s a s e r v e r , b u t w h a t 2 i s t h e s t r u c t u r e o f t h e s e r v e r ? W h a t d a t a b a s e d o e s i t h a v e ? 3 H o w a r e t h i n g s u p l o a d e d ? H o w a r e t h i n g s -- 4 J U D G E W A R D : A n d w h e r e i n y o u r c l a i m a r e t h o s e 5 r e q u i r e m e n t s ? 6 M R . F E M A L : T h o s e r e q u i r e m e n t s a r e i n c l a i m 3 1 . 7 Y o u h a v e o n e o r m o r e d a t a s to r a g e s e r v e r s . 8 J U D G E W A R D : Y o u a g r e e t h a t o n e o f s k i l l i n t h e 9 a r t w o u l d k n o w t h e r e w o u l d b e s e r v e r s , c o r r e c t ? 10 M R . F E M A L : H e m i g h t k n o w t h e r e i s a d a t a 11 s t o r a g e s e r v e r b u t n o t o n e o r m o r e . 12 J U D G E W A R D : O k a y . 13 M R . F E M A L : H e m a y k n o w t h e r e h a s g o t t o b e 14 s o m e k i n d o f c o m m u n i c a t i o n i n t e r f a c e , b u t h e d o e s n ' t n e e d t o 15 k n o w t h e r e i s o n e o r m o r e . 16 J U D G E W A R D : Y o u w o u l d a r g u e t h a t h e w o u l d n ' t 17 k n o w t h a t t h e r e w e r e m u l t i p l e ? 18 M R . F E M A L : H e w o u l d n ' t n e c e s s a r i l y k n o w t h a t 19 t h e r e a r e m u l t i p l e . 20 J U D G E W A R D : B ut y o u r c l a i m d o e s n ' t r e q u i r e 21 m u l t i p l e . 22 M R . F E M A L : N o , j u s t o n e o r m o r e . 23 J U D G E W A R D : S o y o u w o u l d a g r e e t h a t h e w o u l d 24 b e a w a r e -- 25
IPR2014-00070 Patent 8,112,504 44 M R . F E M A L : A t l e a s t o n e . 1 J U D G E W A R D : -- o f o n e s e r v e r a n d o n e 2 c o m m u n i c a t i o n i n t e r f a c e ? 3 M R . F E M A L : A t l e a s t o n e , u m-hu m . 4 J U D G E W A R D : S o w h a t o t h e r e l e m e n t s w o u l d h e 5 n o t b e a w a r e o f i n c l a i m 3 1 ? 6 M R . F E M A L : H e w o u l d n o t n e c e s s a r i l y i n t h e C B C 7 k n o w t h a t t h e r e i s a n U R L . 8 J U D G E W A R D : I a m t a l k i n g a b o u t t h e C N N . 9 M R . F E M A L : O h , C N N ? 10 J U D G E W A R D : T h e o b v i o u s n e s s r e j ec t i o n , w h i c h 11 w o u l d l o o k a t a p e r s o n o f o r d i n a r y s k i l l i n t h e a r t . 12 M R . F E M A L : R i g h t . T h e d i a g r a m t h e y s h o w j u s t 13 s h o w s a s e r v e r . Y o u h a v e n o i d e a w h a t U R L s a r e b e i n g u s e d o r 14 n o t u s e d i n t h a t p a r t i c u l a r -- 15 J U D G E W A R D : D o e s n ' t i t s h o w y o u a U R L a t t h e 16 to p o f t h e w e b p a g e ? 17 M R . F E M A L : I t s h o w s a d o m a i n n a m e . I t m i g h t b e 18 a d o m a i n n a m e . I t m i g h t b e -- G o d o n l y k n o w s w h a t . I h a v e n o 19 i d e a w h a t t h a t p a r t i c u l a r U R L m i g h t o r m i g h t n o t b e . 20 J U D G E W A R D : I t i s a t t h e t o p o f t h e w e b p a g e . 21 M R . F E M A L : M a y b e d o m a i n n a m e . I a g r e e i t i s a 22 w e b p a g e . I a m n o t a r g u i n g t h a t . B u t a t t h a t p a r t i c u l a r t i m e , I 23 h a v e n o i d e a w h a t -- w h e r e y o u g o w i t h t h a t p a r t i c u l a r U R L , i f 24 i t i s u n i q u e o r i f i t i s w h a t e v e r . 25
IPR2014-00070 Patent 8,112,504 45 J U D G E W A R D : Y o u r c l a i m r e q u i r e s t h a t i t b e 1 u n i q u e ? 2 M R . F EM A L : I t r e q u i r e s t h a t y o u g e t a n u p d a t e d 3 c o m p i l a t i o n f i l e f r o m a p r e d e t e r m i n e d U R L . 4 J U D G E W A R D : I s t h e U R L l i s t e d a t t h e t o p o f t h e 5 w e b p a g e s h o w n i n t h e C N N N e w s r o o m a p r e d e t e r m i n e d U R L ? 6 M R . F E M A L : I t i s a s p e c i f i c U R L . B u t i f y o u t r y 7 g o a n d g e t a no t h e r n e w s p a g e , y o u a r e g o i n g t o g o t o a b r a n d 8 n e w U R L , w h a t e v e r t h a t m i g h t b e . 9 J U D G E W A R D : A n d i t w a s p r e d e t e r m i n e d , w a s i t 10 n o t ? 11 M R . F E M A L : I d o n ' t k n o w i f y o u w o u l d -- a s t h e 12 p a t e n t d e f i n e s w h a t i s p r e d e t e r m i n e d , m y , m y t h i n g o f a 13 p r e d e t e r m i n e d U RL i s t h e U R L t h a t h a s a c o m p i l a t i o n f i l e . 14 A n d t h a t d o e s n o t l e a d y o u t o a c o m p i l a t i o n f i l e i n e i t h e r C N N 15 o r C B C . 16 J U D G E W A R D : Y o u h a v e g o t a b o u t s e v e n m i n u t e s 17 r e m a i n i n g . 18 M R . F E M A L : O k a y . A n d t h e n w h a t y o u d o n ' t 19 k n o w i s f r o m t i m e t o t i m e a s n e w e p i s od e s r e p r e s e n t -- a s e r i e s 20 o f e p i s o d e s b e c o m e a v a i l a b l e , t h a t t h e y a r e s t a r t i n g a n u p d a t e d 21 v e r s i o n o f a c o m p i l a t i o n f i l e , a n d o n e o r m o r e o f s a i d d a t a 22 s e r v e r s a t t h e s t o r a g e l o c a t i o n i d e n t i f i e d b y a p r e d e t e r m i n e d 23 U R L . A n d t h e r e i s n o i n d i c a t i o n t h a t t h e r e i s a p r e d e t e r m i n e d 24 U R L t h a t h a s a l l o f t h e e p i s o d e s . 25
IPR2014-00070 Patent 8,112,504 46 J U D G E W A R D : Y o u d o a g r e e t h a t t h e r e i s a 1 p r e d e t e r m i n e d U R L f o r a p a r t i c u l a r p a g e a t t h e C N N w e b p a g e , 2 b u t y o u d o n o t a g r e e t h a t t h a t p r e d e t e r m i n e d U R L l e a d s y o u t o 3 a c o m p i l a t i o n f i l e ; i s t h a t c o r r e c t ? 4 M R . F E M A L : T h a t ' s c o r r e c t . 5 J U D G E W A R D : A n d t h a t i s b e c a u s e t h a t 6 c o m p i l a t i o n f i l e w a s c r e a t e d b r a n d n e w f o r t h a t p a r t i c u l a r d a y 7 a n d w a s n o t a n u p d a t e d v e r s i o n o f a p r e v i o u s l y e x i s t i n g f i l e ? 8 M R . F E M A L : T h a t ' s c o r r e c t , Y o u r H o n o r . 9 J U D G E W A R D : A n d w h a t i s t h e d i f f e r e n c e 10 b e t w e e n a n u p d a t e d v e r s i o n o f a f i l e t h a t c o m p l e t e l y w i p e d 11 a w a y t h e p r e v i o u s f i l e a n d h a s n e w c o n t e n t s a n d w h a t y o u a r e 12 t e l l i n g m e a b o u t -- 13 M R . F E M A L : B e c a u s e i t h a s t h e o l d c o n t e n t , Y o u r 14 H o n o r , a n d t h e n e w c o n t e n t . A n d y o u c a n te l l e x a c t l y w h e r e 15 y o u w a n t t o g o i n t h e e p i s o d e s . 16 J U D G E W A R D : S o y o u r c l a i m r e q u i r e s t h a t t h a t 17 c o m p i l a t i o n f i l e r e t a i n s o m e i n f o r m a t i o n f r o m t h e p r e v i o u s 18 v e r s i o n o f t h e f i l e ? 19 M R . F E M A L : I t w o u l d h a v e p r e v i o u s i n f o r m a t i o n 20 f r o m t h e p r e v i o u s f i l e s , t h a t' s c o r r e c t . 21 J U D G E W A R D : W h e r e i n t h e c l a i m d o I g e t t h a t 22 l i m i t a t i o n ? 23 M R . F E M A L : B e c a u s e , b e c a u s e i t s a y s a n u p d a t e d 24 v e r s i o n o f t h e c o m p i l a t i o n f i l e c o n t a i n s a t t r i b u t e d a t a 25
IPR2014-00070 Patent 8,112,504 47 d e s c r i b i n g c u r r e n t l y a v a i l a b l e e p i s o d e s i n s a i d s e r i e s o f 1 e p i s o d e s a n d s a i d a t tr i b u t e d a t a f o r e a c h g i v e n o n e o f s a i d 2 c u r r e n t l y a v a i l a b l e e p i s o d e s . 3 S o i f t h e r e i s o n e c u r r e n t l y a v a i l a b l e i n t h a t f i l e , i t 4 h a s g o t t o h a v e s o m e k i n d o f i n f o r m a t i o n t h e r e , Y o u r H o n o r . 5 J U D G E W A R D : Y e s , b u t l e t ' s l e a v e t h e e p i s o d e 6 a r g u m e n t a s i d e f o r t h e m o m e n t a n d c o n s i d e r -- 7 M R . F E M A L : O k a y . 8 J U D G E W A R D : -- t h a t i f I a m r e a d i n g t h e c l a i m , 9 s t o r i n g a n u n d a t e d v e r s i o n o f a c o m p i l a t i o n f i l e i n o n e o r m o r e 10 s e r v e r s , d e s c r i b i n g c u r r e n t l y a v a i l a b l e e p i s o d e s i n t h e s e r i e s o f 11 e p i s o d e s , t h e C N N f i l e c r e a t e d f or t o d a y , W e d n e s d a y , i s g o i n g 12 t o l i s t p r o g r a m s a v a i l a b l e f o r t o d a y , a n d i t i s u p d a t e d i n t h e 13 s e n s e t h a t i t i s n e w e r t h a n y e s t e r d a y . 14 I t d o e s n ' t c o n t a i n a n y o f t h e i n f o r m a t i o n f r o m 15 y e s t e r d a y , b u t I d o n ' t u n d e r s t a n d h o w y o u r c l a i m r e q u i r e s t h a t 16 t h a t u p d a t e d v e r s i o n s o m e h o w r e t a i n a p o r t i o n o f p r e v i o u s l y 17 p r o v i d e d c o m p i l a t i o n f i l e d a t a ? 18 M R . F E M A L : B e c a u s e i t s a i d g i v e n s a i d c u r r e n t l y 19 a v a i l a b l e e p i s o d e a n d o n e o r m o r e e p i s o d e U R L s s p e c i f y i n g i n 20 t h e s t o r a g e l o c a t i o n s o f o n e o r m o r e c o r r e s p o n d i n g m e d i a f i l e s . 21 A n d i t s a i d e p i s o d e s . I t i s p l u r a l . I t i s n o t a s i n g l e e p i s o d e . 22 J U D G E W A R D : R i g h t . W e l l , a n d l e t ' s l e a v e t h e 23 e p i s o d e a r g u m e n t a s i d e f o r a w h i l e . L e t ' s j u s t a s s u m e t h a t 24 w h a t i s d i s c l o s e d i n t h e C N N N e w s r o o m a r e m u l t i p l e e p i s o d e s . 25
IPR2014-00070 Patent 8,112,504 48 I t h a s m u l t i p l e e pi s o d e s . I t d o e s n ' t h a p p e n t h a t t h e r e i s a n y 1 c o r r e l a t i o n o r o v e r l a p f r o m t h e p r e v i o u s d a y s , b u t i t h a s 2 m u l t i p l e p r o g r a m s . 3 M R . F E M A L : R i g h t , i t i s a b r a n d n e w p r o g r a m 4 e a c h d a y , b r a n d n e w c o n t e n t . 5 J U D G E W A R D : I t i s a n u p d a t e d v e r s i o n , m u l t i p l e 6 p r o g r a m s . 7 M R . F E M A L : I t i s n o t n e c e s s a r i l y a n u p d a t e d 8 v e r s i o n . I t i s a b r a n d n e w v e r s i o n . B e c a u s e u p d a t e d s a y s , 9 b a s i c a l l y i m p l i e s , i f y o u w a n t t o g o i n t o i n h e r e n t a r g u m e n t s 10 t h a t t h e y a r e u s i n g f o r s t r u c t u r e n o t s h o w n i n t h e i r t w o a r t i c l e s 11 -- 12 J U D G E W A R D : B u t in t h a t y o u a r e r e q u i r i n g m e t o 13 c o n s t r u e " u p d a t e d " t o m e a n " c a r r y o v e r , " t h a t y o u a r e 14 p r o h i b i t i n g t h e t e r m u p d a t e d t o b e i n g a p p l i e d t o s o m e t h i n g t h a t 15 w a s -- t h e o l d d a t a w a s w i p e d o u t a n d a l l n e w d a t a w a s 16 i n s e r t e d ? 17 M R . F E M A L : Y e a h , i t i s a n u p d a t e d c o m p i la t i o n 18 f i l e . A l l o f t h e e p i s o d e s t h a t a r e a v a i l a b l e a r e i n t h a t . N o t j u s t , 19 y o u k n o w , a s i n g l e f i l e i s c r e a t e d e a c h d a y a n d t h e r e i s n o 20 c o m p i l a t i o n f i l e . W h e r e i s t h e c o m p i l a t i o n f i l e i n t h e s e t w o 21 a r t i c l e s ? I c a n ' t f i n d i t , Y o u r H o n o r . T h e r e i s n o r e f e re n c e t o 22 i t . 23
IPR2014-00070 Patent 8,112,504 49 A n d t h e r e i s n o r e f e r e n c e t o -- i f t h e y w a n t e d t o s a y 1 t h e y w e r e u p d a t i n g , a n d t h e s e w e r e n ' t b r a n d n e w , t h e y w o u l d 2 s a y t h e w o r d u p d a t i n g i n t h e C N N a r t i c l e . I t i s n o t t h e r e . 3 J U D G E S N E D D E N : I t s e e m s t h a t a r g u m e n t a l w a y s 4 g o e s b a c k t o h o w w e c o n s t r u e " e p i s o d e . " R i g h t ? T h e 5 c o n t e n t s . c f i l e i s n o t a c o m p i l a t i o n f i l e b e c a u s e i t o n l y c o n t a i n s 6 i n f o r m a t i o n f o r t o d a y , w h i c h y o u d o n ' t r e q u i r e -- w h i c h y o u 7 d o n ' t s e e m t o a g r e e t h a t t h a t ' s a n e p i s o d e . 8 M R . F E M A L : Y o u r H o n o r , c l a i m 3 1 t a l k s a b o u t 9 e p i s od e s , b u t I a m n o t s a y i n g t h a t t h e c o m p i l a t i o n f i l e d o e s n ' t 10 h a v e n e w s s e g m e n t s . I t m a y h a v e n e w s s e g m e n t s i n i t . S o 11 w h a t ? 12 J U D G E S N E D D E N : W e l l , s o w h a t ? B e c a u s e t h a t ' s 13 -- I t h i n k I u n d e r s t a n d y o u r a r g u m e n t . 14 M R . F E M A L : B u t i t i s u p d a t e d t o o . S o e v e n i f y o u 15 a r e a d d i n g n e w n e w s a r t i c l e s , y o u h a v e a n u p d a t e d f i l e . Y o u 16 d o n ' t h a v e a n u p d a t e d f i l e w i t h C N N . T h e r e i s n o r e f e r e n c e t o 17 t h e r e b e i n g a c o m p i l a t i o n f i l e t h e r e . T h e y g o b a c k a n d f i n d a 18 c o m p i l a t i o n f i l e a n d s e e t h a t i t i s u p d a t e d w i t h a b r a n d n e w 19 n e w s o r t h a t t h e o l d s t u f f f r o m l a s t y e a r i s t h e r e t o o . 20 J U D G E S N E D D E N : S o t h a t ' s a n u p d a t e d f i l e , n o t 21 a n u p d a t e d c o m p i l a t i o n f i l e ? 22 M R . F E M A L : R i g h t , t h e c o m p i l a t i o n f i l e h a s a l l 23 t h e c o n t e n t i n i t , Y o u r H o n o r . 24
IPR2014-00070 Patent 8,112,504 50 J U D G E W A R D : A b o u t a m i n u t e a n d a h a l f r e m a i n s , 1 M r . F e m a l . 2 M R . F E M A L : O k a y . W e l l , i n c l o s i n g , t h e m a i n 3 a r g u m e n t , I t h i n k , t h a t c o m e s a c r o s s i s t h e C N N i s , y o u k n o w , a 4 s a t e l l i t e , h i g h-t e c h , v e r y l a r g e f i l e s . T h e y h a v e a l l k i n d s o f 5 p r o b l e m s . T h e y h a v e a l l k i n d s o f s p e c i a l s o f t w a r e . T h e r e is n o 6 r e f e r e n c e t o a c o m p i l a t i o n f i l e . T h e r e i s r e f e r e n c e s t o b r a n d 7 n e w s t r u c t u r e a n d b r a n d n e w t h i n g s t h a t y o u c a n p o s s i b l y d o . 8 B u t t h e r e i s n o u p d a t e d c o m p i l a t i o n f i l e w i t h 9 e p i s o d e s i n i t . A n d t h e n e w s a r t i c l e s d e f i n i t e l y a r e n o t r e l a t e d 10 t o o n e a n o t h er , a s o u r c l a i m c o n s t r u c t i o n w a s t h a t e p i s o d e s 11 w o u l d b e r e l a t e d t o o n e a n o t h e r . 12 T h a n k y o u , Y o u r H o n o r s . 13 J U D G E W A R D : T h a n k y o u . M r . B r o w n , y o u h a v e 14 2 0 m i n u t e s r e m a i n i n g . 15 M R . B R O W N : T h a n k y o u , Y o u r H o n o r . 16 I w o u l d l i k e t o s t a r t w i t h t h e l a n g u a g e o f c l a i m 3 1 . 17 A n d I w a n t t o c l a r i f y e x a c t l y w h a t t h e c l a i m r e q u i r e s a b o u t t h e 18 c o m p i l a t i o n f i l e , a b o u t t h e e p i s o d e s . 19 I a m o n s l i d e 3 , a s -- t h e f i r s t p a r t o f c l a i m 3 1 . I 20 a m n o t g o i n g t o d i s c u s s t h i s p a r t o f t h e c l a i m b e c a u s e w e 21 h a v e n ' t g o t t e n t o t h e c o m p i la t i o n f i l e a t t h i s p a r t o f t h e c l a i m i n 22 a n y d e t a i l o f w h a t w e h a v e i n t h e f i r s t p a r t o f t h e c l a i m t h a t i s 23 s h o w n o n s l i d e 3 i s y o u a r e d i s s e m i n a t i n g a s e r i e s o f e p i s o d e s . 24 Y o u a r e u s i n g a s e r v e r t o d o i t . A n d -- 25
IPR2014-00070 Patent 8,112,504 51 J U D G E A N D E R S O N : C o u n s e l , y o u a r e g o i n g t o 1 n e e d t o g e t c l o s e r t o t h e m i c r o p h o n e , i f y o u w a n t m e t o h e a r 2 t h i s . 3 M R . B R O W N : I a p o l o g i z e , Y o u r H o n o r , l e t m e 4 s t a r t a g a i n . 5 W h a t y o u h a v e i n t h e p a r t o f c l a i m 3 1 t h a t i s s h o w n 6 o n s l i d e 3 , y o u h a v e t h e p r e a m b l e , w h i c h e x p l a i n s t h a t y o u a r e 7 d i s s e m i n a t i n g a s e r i e s o f e p i s o d e s o v e r t h e I n t e r n e t . T h e n y o u 8 h a v e s o m e h a r d w a r e c o m p o n e n t s , t h r e e o f t h e m ; t h e d a t a 9 s t o r a g e s e r v e r , t h e c o m m u n i c a t i o n i n t e r f a c e , a n d t h e 10 p r o c e s s o r s . 11 A n d t h e n y o u h a v e a n e x p l a n a t i o n o f w h a t t h o s e 12 t h i n g s a r e d o i n g s p e c i f i c a l l y . A n d f o r p a r t o f t h e c l a i m h e r e i s 13 j u s t s o f a r w e o n l y h a v e t h e m e d i a f i l e s f o r e a c h e p i s o d e . S o 14 y o u h a v e a m e d i a f i l e f o r e a c h e p i s o d e , a n d I w a n t t o j u s t 15 e m p h a s i z e t h a t t h a t m e d i a f i l e i s s t o r e d a t a s t o r a g e l o c a t i o n 16 s p e c i f i e d b y a u n i q u e e p i s o d e U R L . 17 S o wh e n t h e y w a n t e d t o c l a i m a u n i q u e U R L , t h e y 18 k n e w h o w t o d o i t a n d t h e y d i d i t . 19 N o w l e t ' s g o t o t h e n e x t s l i d e , s l i d e 4 . H e r e i s 20 w h e r e w e h a v e t h e a c t u a l l a n g u a g e a b o u t t h e c o m p i l a t i o n f i l e . 21 F r o m t i m e t o t i m e , a s n e w e p i s o d e s r e p r e s e n t e d i n 22 t h e s e r i e s b e c o m e a v a i l a b l e , s t o r i n g , s t o r i n g a n u p d a t e d v e r s i o n 23 o f a c o m p i l a t i o n f i l e a t t h e s t o r a g e l o c a t i o n i d e n t i f i e d b y a 24 p r e d e t e r m i n e d U R L . A n d w h a t h a s t o b e i n t h a t f i l e ? T h e r e 25
IPR2014-00070 Patent 8,112,504 52 h a s t o b e a t t r i b u t e d a t a -- I a m p a r a p h r a s i n g h e r e . A n d w h a t 1 d o e s t h e a t t r i b u t e d a t a h a v e t o h a v e ? I t s a y s , " s a i d a t t r i b u t e 2 d a t a f o r e a c h g i v e n o n e o f s a i d c u r r e n t l y a v a i l a b l e e p i s o d e s , 3 i n c l u d i n g d i s p l a y a b l e t e x t a n d o n e o r m o r e e p i s o d e U R L s 4 s p e c i f y i n g t h e s t o r a g e l o c a t i o n s . " 5 S o w h a t d o y o u h a v e f o r t h e c o m p i l a t i o n f i l e ? I t 6 h a s to c o n t a i n U R L s , l i n k s t o t h e f i l e s , a n d i t h a s t o c o n t a i n 7 t e x t a b o u t t h e f i l e s . T h a t ' s w h a t i t h a s t o b e . I t t e l l s y o u w h a t 8 a c o m p i l a t i o n f i l e i s r i g h t t h e r e i n t h e c l a i m . 9 N o w , w e h e a r d a n a r g u m e n t t h a t i t h a s t o d e s c r i b e 10 a l l e p i s o d e s . T h a t i s n o t w h at i t s a y s . I n f a c t , i t s p e c i f i c a l l y 11 s a y s t h a t i t h a s t o d e s c r i b e c u r r e n t l y a v a i l a b l e e p i s o d e s . I t 12 d o e s n ' t s a y a l l c u r r e n t l y a v a i l a b l e e p i s o d e s e i t h e r . I t s a y s 13 c u r r e n t l y a v a i l a b l e e p i s o d e s . 14 J U D G E W A R D : H o w d o y o u r e s p o n d t o M r . 15 F e m a l ' s a r g u m e n t t h a t up d a t e d m e a n s i t r e t a i n s s o m e o f t h e 16 p r e v i o u s i n f o r m a t i o n ? 17 M R . B R O W N : M y r e s p o n s e t o t h a t i s t h r e e t h i n g s . 18 F i r s t , t h a t i s n ' t t h e o n l y m e a n i n g o f u p d a t e d i n o r d i n a r y E n g l i s h 19 u s a g e . S e c o n d , i n t h e p a t e n t i t e x p l a i n s w h a t t h e c o m p i l a t i o n 20 f i l e i s a n d w h y it i s u p d a t e d . I t i s u p d a t e d s o t h e p l a y e r c a n 21 d o w n l o a d t h e n e w p r o g r a m s e g m e n t s . 22 S o i t s e r v e d t h e p u r p o s e o f t h e c o m p i l a t i o n f i l e a s 23 d e s c r i b e d i n t h e p a t e n t a t c o l u m n 6 a n d c o l u m n 7 . I t j u s t h a s t o 24 c o n t a i n t h e n e w o n e s . A n d t h e n , t h i r d , I a s k e d t h e i r e x p e r t , a s I 25
IPR2014-00070 Patent 8,112,504 53 h a v e s a i d , s p e c i f i c a l l y i n h i s d e p o s i t i o n a b o u t t h i s u p d a t e d 1 i s s u e . A n d c o u n s e l a r g u e d : W e l l , I d i d n ' t a s k h i m a b o u t 2 p r o g r a m s e g m e n t s , t h a t I w a s -- I ' m s o r r y , t h a t I w a s a s k i n g 3 a b o u t p r o g r a m s e g m e n t s , t h a t I w a s n ' t a s k i n g a b o u t e p i s o d e s . 4 A n d I j u s t w a n t t o a d d r e s s t h a t , b e c a u s e I t h i n k t h e 5 l a n g u a g e i s a c t u a l l y v e r y c l e a r i n t h e d e p o s i t i o n . E x c u s e m e 6 w h i l e I f i n d t h e c i t a t i o n . 7 I ' m s o r r y , i t w a s c l e a r b o t h o n e p i s o d e s a n d o n 8 u p d a t e d . S o l e t m e -- 9 J U D G E W A R D : C a n y o u t e l l u s w h i c h e x h i bi t y o u 10 a r e g o i n g t o r e f e r t o , M r . B r o w n ? 11 M R . B R O W N : I a m g o i n g t o r e f e r t o t h e d e p o s i t i o n 12 t r a n s c r i p t , w h i c h i s E x h i b i t 1 0 3 1 . 13 J U D G E W A R D : T h a n k y o u . 14 M R . B R O W N : A n d i n E x h i b i t 1 0 3 1 , a t p a g e 9 1 , 15 a n d I w a s a s k i n g h i m a b o u t -- a n d I a m g o i n g t o g o t o sl i d e 1 8 . 16 I w a s a s k i n g h i m a b o u t f i g u r e 3 o f t h e C N N r e f e r e n c e . A n d I 17 a s k e d h i m : T h e t a b l e o f c o n t e n t s , i n p a r t i c u l a r t h e 18 c o n t e n t s . h t m l f i l e i s g e n e r a t e d e a c h d a y f o r e a c h N e w s r o o m 19 p r o g r a m ; c o r r e c t ? 20 " A n s w e r : Y e s . " 21 A n d i n p a r t i c u l a r t h e r e i s a p r o g r am i d e n t i f i e d h e r e 22 a s c o n t e n t s . c t h a t i s r u n e a c h d a y a n d g e n e r a t e s t h e H T M L f i l e , 23 c o n t e n t s . h t m l f o r e a c h N e w s r o o m p r o g r a m , r i g h t ? 24 " A n s w e r : Y e s , t h a t ' s w h a t i t l o o k s l i k e . 25
IPR2014-00070 Patent 8,112,504 54 " Q u e s t i o n : T h a t m e a n s t h e c o n t e n t s . h t m l f i l e i s 1 u p d a t e d e a c h d a y t o r e f l e c t t h e m o s t r e c e n t b r o a d c a s t o f C N N 2 N e w s r o o m , c o r r e c t ? 3 " A n s w e r : Y e s , I b e l i e v e s o . " 4 S o i n s u m t h e r e a s o n s a r e t h a t u p d a t e d m e a n s , 5 i n c l u d e s a n e w f i l e d o e s n o t r e q u i r e t h a t t h e f i l e b e u p d a t e d i n a 6 s p e c i f i c w a y b y b e i n g a m e n d e d . T h e r e a s o n s a r e , N u m b e r 1 , 7 th e o r d i n a r y m e a n i n g o f t h e w o r d " u p d a t e d " a n d , N u m b e r 2 , t h e 8 w a y t h e c o m p i l a t i o n f i l e i s d e s c r i b e d i n t h e p a t e n t a n d w h a t i t 9 n e e d s t o b e t o a c c o m p l i s h t h e p u r p o s e i n t h e p a t e n t , w h i c h i s t o 10 d o w n l o a d t h e n e w e p i s o d e s -- e x c u s e m e , s e g m e n t s t o t h e 11 p l a y e r . An d , N u m b e r 3 , b e c a u s e I s p e c i f i c a l l y q u e s t i o n e d 12 P e r s o n a l A u d i o ' s e x p e r t a b o u t i t , a n d h e a c k n o w l e d g e d t h a t 13 w h a t i s d e s c r i b e d i n t h e C N N r e f e r e n c e i s a n u p d a t e d f i l e . 14 J U D G E W A R D : H o w d o y o u -- 15 J U D G E A N D E R S O N : C o u n s e l , w h a t a b o u t t h e 16 l a n g u a g e , w h a t a b o ut t h e l a n g u a g e i n t h e c l a i m 3 1 t h a t s a y s , " a s 17 n e w e p i s o d e s r e p r e s e n t e d i n s a i d s e r i e s o f e p i s o d e s b e c o m e 18 a v a i l a b l e , s t o r i n g a n u p d a t e d v e r s i o n o f a c o m p i l a t i o n f i l e i n 19 o n e o r m o r e o f t h e s t o r a g e o f t h e s e r v e r s . " 20 S o i s C N N , a s I u n d e r s t a n d C N N i s u p d a t e d d a i l y , I 21 u n d e r s t a n d t h a t , b u t e a c h d a y t h a t i t i s u p d a t e d , i t a l r e a d y h a s 22 p r e d e f i n e d c o n t e n t , t h r e e o r f o u r n e w e p i s o d e s e g m e n t s , 23 w h a t e v e r , a r e a v a i l a b l e i n t h a t c o m p i l a t i o n f i l e , s o t h e r e r e a l l y 24
IPR2014-00070 Patent 8,112,504 55 i s n o t h i n g -- t h e r e i s n o t h i n g t h a t g e t s a d d e d a s a n e w " e p is o d e " 1 b e c o m e s a v a i l a b l e o r a m I w r o n g ? 2 M R . B R O W N : W e l l , l e t ' s -- l e t m e l o o k a t t h e -- 3 g e t t h e c l a i m l a n g u a g e i n f r o n t o f m e , Y o u r H o n o r . L e t ' s g o 4 t h r o u g h i t . A n d I w i l l m a p i t t o w h a t i s d i s c l o s e d i n C N N f o r 5 y o u . 6 A t a h i g h l e v e l , y o u h a v e a r i g h t , w h a t C N N i s 7 d e s c r i b i n g i s a w a y o f d i g i t i z i n g , a n a u t o m a t e d d i g i t i z a t i o n 8 s y s t e m t h a t t o o k t h e C N N n e w s b r o a d c a s t , w h e t h e r i t w a s a n 9 e d u c a t i o n a l b r o a d c a s t a t 3 : 4 5 a . m . e v e r y m o r n i n g , i t w a s 10 i n t e n d e d f o r t e a c h e r s t o r e c o r d a n d u s e i n t h e i r c l a s s r o o m s . I t 11 cap t u r e d t h e b r o a d c a s t a n d i n a u t o m a t e d w a y s i t d i v i d e d i t i n t o 12 p i e c e s , i n t o s e g m e n t s . A n d i t g e n e r a t e d t h i s c o n t e n t s . h t m l t a b l e 13 o f c o n t e n t s f i l e d e s c r i b i n g e a c h a n d l i n k i n g t o e a c h . S o l e t ' s 14 l o o k a t t h e l a n g u a g e o f t h e c l a i m . 15 A n d y o u p o i n t e d t o i t . I t s a y s , j u s t r e a d i n g f r o m 16 c l a i m 3 1 h e r e , " f r o m t i m e t o t i m e a s n e w e p i s o d e s r e p r e s e n t e d 17 i n s a i d s e r i e s o f e p i s o d e s b e c o m e a v a i l a b l e . " S o e v e r y m o r n i n g 18 a t 3 : 4 5 a . m . f o r t h e n e x t 1 5 m i n u t e s t h e r e i s a n e w b r o a d c a s t o f 19 C N N N e w s r o o m . E v e r y m o r n i n g t h a t i s r e c or d e d . 20 I a m n o w l o o k i n g a g a i n , I a m s t i l l o n s l i d e 1 8 , a n d 21 m u l t i p l e s o u r c e s o f i n f o r m a t i o n m u s t b e p r o c e s s e d a n d m e r g e d 22 e a c h n i g h t . T h e y r e c o r d t h e b r o a d c a s t . I b e l i e v e t h e y a l s o -- I 23 f o r g e t s p e c i f i c a l l y t h e o t h e r s o u r c e . I b e l i e v e t h e r e w a s s o m e 24
IPR2014-00070 Patent 8,112,504 56 s o r t o f a p r o d u c t i o n n o t e s t h a t w e r e i n t e n d e d f o r t h e t e a c h e r . 1 T h e y a r e a l s o d i s c l o s e d . 2 T h o s e a r e p r o c e s s e d t o g e t h e r . E x c u s e m e , i t i s t h e 3 c u r r i c u l u m g u i d e , I a m r e m i n d e d . I n f i g u r e 3 , t h e r e i s a 4 r e f e r e n c e t o t h e c u r r i c u l u m g u i d e . T h a t i s p r o c e s s e d b y t h is 5 p r o g r a m , c o n t e n t s . c , i n o r d e r t o g e n e r a t e t h e c o n t e n t s . h t m l f i l e 6 f o r t h a t p a r t i c u l a r b r o a d c a s t . 7 J U D G E A N D E R S O N : C o u n s e l , I ' m s o r r y t o 8 i n t e r r u p t , b u t t h e q u e s t i o n t h a t I r e a l l y h a v e i s , o k a y , s o t h e r e i s 9 a n u p d a t e d c o m p i l a t i o n f i l e e v e r y d a y , b u t t h e cl a i m s u g g e s t s t o 10 m e -- a n d m a y b e m o r e t h a n s u g g e s t s -- t h a t n e w e p i s o d e s , a s 11 t h e y b e c o m e a v a i l a b l e , a r e u p d a t e d i n t o t h a t s a m e c o m p i l a t i o n 12 f i l e . 13 A n d i t a p p e a r s t h a t C N N s h o w s t h a t e p i s o d e s a r e 14 t h e r e u n d e r w h a t w e h a v e d i s c u s s e d s o f a r , w h a t y o u r p o s i t i o n 15 i s , b u t t h e n e x t d a y a n e w c o m p i l a t i o n f i l e i s m a d e a n d i t i s 16 n e v e r u p d a t e d a s e p i s o d e s b e c o m e a v a i l a b l e . S o t e l l m e w h y I 17 a m m i s s i n g t h e b o a t h e r e . 18 M R . B R O W N : Y o u r H o n o r , I t h i n k y o u a r e 19 p a r t i a l l y r i g h t . S o i f y o u l o o k a t t h e f i g u r e 3 i n C N N 20 N e w s r o om , w h a t i t s h o w s i s t h a t e v e r y d a y t h e c o n t e n t i s 21 u p d a t e d i n t o t h e s a m e c o n t e n t s . h t m l f i l e . W h a t i t d o e s n ' t s h o w 22 i s t h a t o l d c o n t e n t s . h t m l c o n t e n t , t h e f i l e t h a t w a s i n t h a t f i l e 23 f r o m b e f o r e , i s l e f t i n t h e f i l e . I t i s n ' t . I t i s a l w a y s c l e a r l y 24 b e i n g o v er w r i t t e n . 25
IPR2014-00070 Patent 8,112,504 57 S o t h a t i s t h e i s s u e . Y o u h a v e a f i l e t h a t i s b e i n g 1 o v e r w r i t t e n e a c h d a y w i t h n e w c o n t e n t . A n d t h e p l a i n l a n g u a g e 2 o f u p d a t e d v e r s i o n o f a c o m p i l a t i o n f i l e , w e b e l i e v e , i n c l u d e s 3 t h a t . B u t l e t ' s t a l k a b o u t t h e s i t u a t i o n t h a t i t d o e s n ' t . L e t ' s t a l k 4 a b o u t t h a t . 5 W h a t d o e s t h e p a t e n t s h o w u s ? A c t u a l l y , I d o n ' t 6 h a v e a s l i d e o n t h i s , I a p o l o g i z e , b u t i f y o u g o t o p a g e 3 0 o f t h e 7 C N N r e f e r e n c e , I ' m s o r r y , i t i s p a g e 3 0 o f t h e e x h i b i t a n d i t i s 8 p a g e 2 9 o f t h e r e f e r e n c e . W h a t d o e s i t s a y ? I t t a l k s a b o u t h o w 9 t h e t e c h n i q u e s t h a t a r e d e s c r i b e d h e r e -- a n d I w i l l q u o t e -- 10 " c o u l d a d d s i g n i f i c a n t v a l u e t o o t h e r g e n e r a l n e w s p r o g r a m s o r 11 s p e c i a l i z e d n e w s p r o g r a m s . " A n d h e r e i s t h e k e y p a r t -- " o r 12 a n y o t h e r p r o g r a m f o r w h i c h u s e r s m i g h t w a n t t o b e a b l e t o se e 13 p a s t e p i s o d e s , i . e . , o t h e r n e w s p r o g r a m s , s i t c o m s , s o a p o p e r a s . " 14 S o t h i s r e f e r e n c e i s s a y i n g e x p r e s s l y s o t h a t i t c a n 15 b e a p p l i e d t o e x a c t l y t h e s i t u a t i o n t h a t P e r s o n a l A u d i o i s 16 a r g u i n g i t s h o u l d h a v e b e e n a p p l i e d , y o u k n o w , t h a t i t s p a t e n t 17 i s d e s c r i b in g w h e r e y o u w a n t t o -- y o u h a v e a t e l e v i s i o n s h o w 18 l i k e a s i t c o m a n d y o u w a n t t o b e a b l e t o g e t p a s t e p i s o d e s , a s 19 w e l l a s t h e c u r r e n t l y a v a i l a b l e e p i s o d e s o f t h e s i t c o m . 20 N o w , I d o n ' t t h i n k t h a t ' s w h a t t h e c l a i m r e q u i r e s , 21 b u t i f t h a t i s w h a t t h e B o a r d b e li e v e s t h e c l a i m r e q u i r e s , C N N 22 e x p r e s s l y t e a c h e s t h a t t h a t i s , c a n b e a c c o m p l i s h e d u s i n g t h e 23 m e c h a n i s m t h a t i s d e s c r i b e d i n d e t a i l . A n d t h e r e i s n o 24 a r g u m e n t , n o a r g u m e n t f r o m P e r s o n a l A u d i o a b o u t h o w i t c o u l d 25
IPR2014-00070 Patent 8,112,504 58 p o s s i b l y m a k e a n y s o r t o f t e c h n o l o g i c a l d i f f e r en c e o n t h i s 1 i s s u e . 2 T h e B o a r d ' s I n s t i t u t i o n d e c i s i o n -- a n d I d o n ' t h a v e 3 a p a g e n u m b e r i n f r o n t o f m e -- b u t t h e B o a r d ' s I n s t i t u t i o n 4 d e c i s i o n s p e c i f i c a l l y p o i n t e d o u t t h a t t h e p r e l i m i n a r y r e s p o n s e 5 b y t h e P a t e n t O w n e r d i d n ' t c o n t a i n a n y l o g i c u n d e r K S R 6 e x pl a i n i n g h o w t h i s w a s a n o n -- t h a t i f t h e r e w a s a r e q u i r e m e n t 7 o f a d i f f e r e n t a m e n d e d c o m p i l a t i o n f i l e w i t h o l d c o n t e n t , t h a t 8 t h i s w a s s o m e h o w m o r e t h a n -- i t w a s s o m e h o w p r e d i c t a b l e a n d 9 i t w a s s o m e h o w m o r e t h a n a t r i v i a l m e c h a n i s m . 10 A n d e v e n a f t e r t h e B o ar d s p e c i f i c a l l y p o i n t e d t h a t 11 o u t , t h e r e h a s b e e n n o s h o w i n g a n d n o e v i d e n c e f r o m P e r s o n a l 12 A u d i o o n t h a t p o i n t . N o n e . 13 W h y i s t h a t ? W e l l , w h e n I a s k e d t h e i r e x p e r t a b o u t 14 w h a t w a s k n o w n a n d u n d e r s t o o d , o n e o f t h e t h i n g s t h a t I a s k e d 15 h i m a b o u t , w h a t a p e r so n o f o r d i n a r y s k i l l i n t h e a r t w o u l d 16 u n d e r s t a n d t o b e a b l e t o d o a t t h e t i m e w a s s p e c i f i c a l l y a b o u t 17 c r e a t i n g a n u p d a t e d v e r s i o n o f a t a b l e o f c o n t e n t s f o r a w e b s i t e 18 w i t h l i n k s t o a m e d i a f i l e . 19 A n d s o I w i l l r e f e r t o t h e t r a n s c r i p t o f D r . N e l s o n , 20 g e n e r al l y f r o m p a g e 7 9 t h r o u g h p a g e 8 2 i s w h a t w e q u o t e d i n 21 o u r r e p l y . A n d I a m g o i n g t o r e a d t o y o u p a r t i c u l a r l y a t t h e e n d 22 o f t h a t s e r i e s o f q u e s t i o n s -- a c t u a l l y , I w i l l s t a r t a t t h e 23 b e g i n n i n g , j u s t t o s e t t h e c o n t e x t . 24
IPR2014-00070 Patent 8,112,504 59 I a s k e d h i m : " P e o p l e o f o r d i n a r y s k il l k n e w h o w t o 1 i n c l u d e m e d i a f i l e s s u c h a s p i c t u r e s i n t h e i r w e b p a g e s , r i g h t ? 2 " A n s w e r : Y e s . " T h a t ' s o n p a g e 7 9 f r o m 1 2 t o 1 6 . 3 A n d t h e n s k i p p i n g f o r w a r d t o p a g e 8 1 , m y q u e s t i o n 4 w a s : " S u p p o s e y o u h a v e a w e b s i t e t h a t h a s a w e b s i t e -- 5 e x c u s e m e , t h a t h a s 1 0 H T M L f i l e s a n d t e n i m a g e s a n d y o u 6 h a v e g o t -- y o u w o u l d k n o w " -- I a p o l o g i z e f o r m y b a d 7 q u e s t i o n i n g i n t h i s d e p o s i t i o n -- " y o u w o u l d k n o w h o w t o 8 g e n e r a t e a t a b l e o f c o n t e n t s . h t m l f i l e t h a t h a d l i n k s t o a l l 2 0 o f 9 t h o s e t h i n g s , r i g h t ? 10 " A n s w e r : O k ay . 11 " Q u e s t i o n : I s t h a t t r u e ? 12 " A n s w e r : Y e s . 13 " Q u e s t i o n : N o w , s a y t h a t p e r s o n c r e a t e d o n e m o r e 14 i m a g e a n d a d d e d i t t o t h e i r w e b s i t e . A r e y o u w i t h m e ? 15 " A n s w e r : Y e a h . 16 " Q u e s t i o n : W o u l d t h e p e r s o n o f o r d i n a r y s k i l l i n 17 1 9 9 6 k n o w h o w t o u p d a t e t h e t ab l e o f c o n t e n t s t o r e f e r t o t h a t 18 n e w i m a g e ? 19 " A n s w e r : Y e a h , I t h i n k s o . 20 " Q u e s t i o n : I s t h e s a m e t r u e i f t h e y a d d e d a n 1 1 t h 21 w e b p a g e , s o a n e w H T M L f i l e ? 22 " A n s w e r : R i g h t , I a g r e e . " 23 J U D G E S N E D D E N : I h a v e a q u e s t i o n . M r . F e m a l 24 i n a r g u m e n t s u g g e s t e d t ha t w h a t w a s p r e s e n t e d i n t h e C N N w e b 25
IPR2014-00070 Patent 8,112,504 60 p a g e i s n o t a n e p i s o d e b e c a u s e i t c o n t a i n s i n f o r m a t i o n t h a t i s 1 n o t s e r i a l l y r e l a t e d , m e a n i n g t h a t i t d i d n ' t m a t t e r w h a t o r d e r 2 y o u v i e w e d t h e s u b j e c t m a t t e r , b u t d o e s i t m a t t e r w h a t o r d e r 3 y o u w o u l d -- b e c a u s e t h e y w e r e un r e l a t e d i n t h a t r e g a r d . 4 T h e t i t l e o f t h i s p a t e n t d o e s s u g g e s t o r j u s t i s 5 s y s t e m s f o r d i s s e m i n a t i n g m e d i a c o n t e n t r e p r e s e n t i n g e p i s o d e s 6 i n a s e r i a l i z e d s e q u e n c e . A n d i n t h a t s e n s e i f I t h i n k a b o u t 7 w o r l d n e w s , i t w o u l d b e s e r i a l l y r e l a t e d i f i t w a s p r e s en t e d i n a 8 m a t t e r o f s a y , M o n d a y , T u e s d a y , W e d n e s d a y , w h e n w e ' r e j u s t 9 looking at Wednesday, is it still serialized in this way? Is that 10 -- h o w d o y o u a d d r e s s t h a t ? 11 M R . B R O W N : S o I b e l i e v e i t i s s t i l l s e r i a l i z e d . 12 A n d t h e s h o r t a n s w e r i s t h a t I b e l i e v e it i s s t i l l s e r i a l i z e d 13 b e c a u s e t h e r e i s t h e f i r s t s t o r y , t h e r e i s t h e s e c o n d s t o r y , a n d 14 t h e t h i r d s t o r y . A n d I b e l i e v e t h a t i s e x a c t l y w h a t i s d e s c r i b e d 15 i n t h e p a t e n t a s w h a t a s e r i a l i z e d s e q u e n c e i s . 16 S o I w o u l d l i k e t o j u s t r e f e r y o u , b e c a u s e I t h i n k 17 thi s i s a n i m p o r t a n t p o i n t , b a c k t o w h a t t h e p a t e n t a c t u a l l y s a y s 18 a b o u t e p i s o d e s . 19 A n d s o t h e r e i s t h r e e w o r d s h e r e t h a t a r e b e i n g 20 u s e d , p r o g r a m , s e g m e n t , a n d e p i s o d e . A n d t h e p a t e n t i n g r e a t 21 d e t a i l d i s c u s s e s p r o g r a m s e g m e n t s . S o I b e l i e v e t h e r e i s a l i t tl e 22 b i t o f c o n f u s i o n t h a t o c c u r s f r o m t r y i n g t o s e p a r a t e p r o g r a m 23 a n d s e g m e n t . B e c a u s e t h r o u g h o u t w h a t i s d e s c r i b e d i n t h i s 24
IPR2014-00070 Patent 8,112,504 61 p a t e n t i s h o w t o d i s t r i b u t e p r o g r a m s e g m e n t s , t h e c o m p i l a t i o n 1 f i l e p r o v i d e s t h e n e w p r o g r a m s e g m e n t s t o t h e s u b s c r i b e r . 2 A n d s o I a m j u s t g o i n g t o s t a r t b y r e f e r r i n g y o u t o 3 c o l u m n 1 8 , w h e r e t h e r e i s w h a t I b e l i e v e i s a n i n t e r e s t i n g t a b l e 4 w h i c h s h o w s t h e d a t a s t r u c t u r e f o r a p r o g r a m s e g m e n t . A n d I 5 w a n t t o p a r t i c u l a r l y c a l l o u t t o y o u , b e c a u s e i t i s a b o u t t o c o m e 6 u p i n t h e n e x t c o l u m n , c o l u m n 1 9 , t h a t t h e r e a r e -- h a n g o n , I 7 h a v e t o g e t i t -- t h a t i n t h e t a b l e o n c o l u m n 1 8 , I ' m s o r r y , 8 c o l u m n 1 7 , I a p o l o g i z e , o n e o f t h o s e d a t a -- t h e s e t s o f d a t a 9 f i e l d s a r e g r o u p I D , e p i s o d e . A n d t h a t i s a t l i n e 3 8 . 10 S o n o w i f w e g o o n t o c o l u m n 1 9 , t h is i s n o w t h e 11 p o r t i o n o f t h e p a t e n t t h a t t h e B o a r d w a s d e s c r i b i n g i n i t s e a r l i e r 12 q u e s t i o n s . I t e x p l a i n s , w h e n i t i s t a l k i n g a b o u t s e r i a l i z e d 13 s e q u e n c e o f p r o g r a m s , " a g i v e n p r o g r a m s e g m e n t m a y r e p r e s e n t 14 a n e p i s o d e i n a s e r i e s , w h i c h i s s e l e c t e d a s a g r o u p by a 15 s u b s c r i b e r . " 16 A n d I t h i n k r i g h t n o w w h a t w e k n o w s o f a r i s t h a t 17 a n e p i s o d e i s a t y p e o f p r o g r a m s e g m e n t t h a t c a n b e s e l e c t e d a s 18 a g r o u p b y a s u b s c r i b e r . A n d t h e n i t g o e s o n t o s a y -- a n d t h e 19 g r a m m a r , I b e l i e v e -- I b e l i e v e i t i s t h e r e i s a t y p o i n c ol u m n 20 1 9 . T h e g r a m m a r i s a l i t t l e c o n f u s i n g . B u t i t s a y s , " a 21 s u b s c r i b e r m a y s e l e c t a n i n d i v i d u a l p r o g r a m i n a s e r i a l 22 s e q u e n c e . " A n d w h i l e i t o n l y s a y s p r o g r a m t h e r e , I t h i n k i t i s 23 c l e a r f r o m t h e c o n t e x t , i t i s r e f e r r i n g t o t h e p r o g r a m s e g m e n t . 24
IPR2014-00070 Patent 8,112,504 62 A n d t h e n i t g o e s o n t o s a y , " t h e h o s t m a y t h e n 1 f u r t h e r i n s t a l l m e n t s o r r e l a t e d p r o g r a m s , " w h i c h d o e s n ' t m a k e 2 m u c h s e n s e t o m e . T o m e w h a t I t h i n k w h a t t h e y m e a n t t o s a y 3 w a s t h e h o s t m a y t h e n s e n d f u r t h e r i n s t a l l m e n t s o f r e l a t e d 4 p r o g r a m s w i t h i n t h e s e r i e s . 5 I n o th e r w o r d s , i t i s d e s c r i b i n g t w o p o s s i b i l i t i e s 6 w h e r e i f y o u s e l e c t o n e e p i s o d e i n a s e r i e s o f r e l a t e d s e g m e n t s , 7 i t m a y t h e n a u t o m a t i c a l l y s e n d y o u o t h e r -- f u r t h e r i n s t a l l m e n t s 8 o f r e l a t e d p r o g r a m s w i t h i n t h e s e r i e s . A n d i t i s t h a t s e n t e n c e 9 t h a t w e p o i n t e d t o i n o u r p e t i t i o n w h e n w e w e r e e x p l a i n i n g 10 " r e l a t e d . " 11 A n d I b e l i e v e t h a t t h a t p a r a g r a p h , w h e n i t i s r e a d , 12 s h o w s t h a t r e l a t e d -- s e g m e n t s a r e r e l a t e d a n d e p i s o d e s , w h e n 13 t h e y a r e p a r t o f a s e r i e s , a n d t h a t ' s w h a t t h i s p a t e n t s a y s . N o w , 14 t h e p a r t t h a t r e a l ly c l i n c h e s i t f o r m e , a n d t h e r e a s o n I p o i n t e d 15 o u t t h e t a b l e i n c o l u m n 1 7 i s t h e n e x t s e n t e n c e , w h i c h s a y s " t h e 16 p r o g r a m s e g m e n t r e c o r d c o n t a i n s a g r o u p I D f i e l d , w h i c h 17 s p e c i f i e s t h e s e r i e s a s a w h o l e a n d a n e p i s o d e i n t e g e r f i e l d 18 s p e c i f i e s t h e p o s i t i o n o f th e g i v e n p r o g r a m s e g m e n t w i t h i n t h e 19 s e r i a l i z e d s e q u e n c e . " 20 S o t h e p a t e n t i s e x p l a i n i n g t h e r e l a t i o n s h i p h e r e . 21 T h e s e g m e n t s a r e e p i s o d e s . T h e y f i t w i t h i n t h e s e r i e s a s a 22 w h o l e . T h e y h a v e a g r o u p I D f i e l d . A n d t h e y h a v e a n e p i s o d e 23 I D f i e l d , w h i c h i d e n t if i e s t h e m s p e c i f i c a l l y . 24
IPR2014-00070 Patent 8,112,504 63 A n d j u s t -- I h e a r d t h e b e e p -- b u t t o w r a p u p 1 q u i c k l y , u n d e r t h e d e f i n i t i o n o f e p i s o d e t h a t i s p r o v i d e d h e r e i n 2 c o l u m n 1 9 , t h e i r e x p e r t a c k n o w l e d g e d t h e s e a r e e p i s o d e s . T h a t 3 i s t h e d e f i n i t i o n t h a t i s p r o v i d e d i n c o l u m n 1 9 i s e x ac t l y w h a t 4 i s s u p p o r t e d b y t h e B o a r d ' s d e f i n i t i o n . 5 E v e n i f y o u r e m o v e t h e w o r d " r e l a t e d , " e v e n i f y o u 6 o n l y r e q u i r e t h e e p i s o d e s t o b e p a r t o f a s e r i e s , t h a t i s c l e a r l y 7 s a t i s f i e d b y w h a t i s d i s c l o s e d i n b o t h t h e C N N r e f e r e n c e a n d 8 Q u i r k s & Q u a r k s , b e c a u s e th e r e i s a s e r i e s o f s t o r i e s t h a t a r e 9 p a r t o f e a c h d a y ' s C N N N e w s r o o m b r o a d c a s t . T h e y w e r e 10 s e l e c t e d b y t h e C N N s t a f f t o b e p a r t o f t h a t 1 5-m i n u t e s e g m e n t 11 t h a t w a s b r o a d c a s t a t 3 : 4 5 a . m . f o r e d u c a t i o n a l u s e . 12 Y o u p r o b a b l y a r e n ' t g o i n g t o s e e g r a p h i c m u r d e r 13 s t o r i e s i n t h e r e . Y o u a r e g o i n g t o s e e s t o r i e s t h a t w e r e b e l i e v e d 14 t o b e a p p r o p r i a t e f o r u s e i n a n e d u c a t i o n a l s e t t i n g . T h a t w e r e 15 s p e c i f i c a l l y s e l e c t e d t o g e t h e r . 16 J U D G E W A R D : M r . B r o w n , w h a t a b o u t , y o u 17 m e n t i o n e d t h e P a t r i c k r e f e r e n c e . W h a t a b o u t t h e fa c t t h a t -- 18 a n d y o u a r e r e l y i n g s p e c i f i c a l l y o n t h e Q u i r k s & Q u a r k s r a d i o 19 p r o g r a m . 20 M R . B R O W N : Y e s . 21 J U D G E W A R D : F r o m w h a t I v i e w i n t h a t 22 r e f e r e n c e , i t o n l y d i s c l o s e s o n e Q u i r k s & Q u a r k s e p i s o d e . 23 M R . B R O W N : L e t m e g o t o s l i d e 2 0 . I b e l i e v e , 24 Y o u r H on o r , t h a t i t d i s c l o s e s r e g u l a r l y u p d a t i n g t h e Q u i r k s & 25
IPR2014-00070 Patent 8,112,504 64 Q u a r k s e p i s o d e s a v a i l a b l e o n t h e s e r v e r . I a m p u t t i n g o n p a g e 1 2 0 . A n d i t s a y s t h e s h o w i s r e g u l a r l y u p d a t e d o n t h e s e r v e r . 2 T h e h o u r-l o n g s h o w w a s a u t o m a t i c a l l y r e c o r d e d e a c h w e e k a n d 3 t h e n m a n u a l l y br o k e n i n t o f i v e- o r t e n-m i n u t e s e g m e n t s a t t h e 4 n a t u r a l b o u n d a r i e s . S o I t h i n k t h a t ' s e x p l a i n i n g t h a t i t w a s 5 r e c o r d e d m u l t i p l e t i m e s . 6 J U D G E W A R D : I h a v e o n e f i n a l q u e s t i o n f o r y o u 7 a n d I w i l l a s k m y c o l l e a g u e s i f t h e y h a v e a d d i t i o n a l o n e s . M y 8 f i n a l q u e s ti o n i s , d o y o u h a v e a p r o p o s a l w i t h r e s p e c t t o t h e 9 p e r s o n o f o r d i n a r y s k i l l i n t h e a r t ? 10 M R . B R O W N : Y o u r H o n o r , w e d i d h a v e a 11 p r o p o s a l . I n P e t i t i o n e r ' s r e s p o n s e , t h e y a r g u e d t h a t i t d i d n ' t 12 m a k e a n y d i f f e r e n c e . I b e l i e v e t h a t i s a t p a g e 8 . W e b e l i e v e 13 th e s a m e . W h e t h e r y o u a d o p t t h e i r p r o p o s a l o r o u r p r o p o s a l 14 i s n ' t g o i n g t o m a k e a d i f f e r e n c e . 15 A p e r s o n o f o r d i n a r y s k i l l i n t h e a r t b a s e d o n m y 16 q u e s t i o n s t o D r . N e l s o n , w h o w a s u s i n g h i s o w n d e f i n i t i o n o f 17 p e r s o n o f o r d i n a r y s k i l l , k n e w h o w t o c r e a t e a n u pd a t e d t a b l e o f 18 c o n t e n t s f i l e , k n e w w h a t a l i n k w a s , k n e w t h a t w h e n y o u h a d a 19 l i n k t o f o l l o w o r t o d o w n l o a d f i l e -- 20 J U D G E W A R D : S o y o u a c c e p t t h e P a t e n t O w n e r ' s 21 p r o p o s a l t h a t i t i s a p e r s o n w i t h a n u m b e r o f y e a r s o f 22 e x p e r i e n c e i n w e b p a g e d e v e l o p m e n t ; i s t h a t c o r r e c t ? 23 M R . B R O W N : I f t h a t ' s -- I w a n t t o b e c a r e f u l 24 b e c a u s e I a m n o t s u r e t h a t w a s e x a c t l y t h e p r o p o s a l i n t h e i r 25
IPR2014-00070 Patent 8,112,504 65 r e s p o n s e . I w o u l d a c c e p t t h e p r o p o s a l i n t h e i r r e s p o n s e , w h i c h 1 i s w h a t I u n d e r s t o o d D r . N e l s o n t o b e t e s t i f y i n g a b o u t . 2 J U D G E W A R D : O k a y . T h a n k y o u . 3 J u d g e S n e d d e n , a n y q u e s t i o n s f r o m y o u ? 4 J U D G E S N E D D E N : I h a v e n o n e . 5 J U D G E W A R D : J u d g e A n d e r s o n , a n y f u r t h e r 6 q u e s t i o n s ? 7 J U D G E A N D E R S O N : N o , J u d g e W a r d . T h a n k y o u . 8 J U D G E W A R D : A l l r i g h t . W e s t a n d a d j o u r n e d . 9 T h a n k y o u . 10 ( W he r e u p o n , a t 2 : 3 8 p . m . , t h e h e a r i n g c o n c l u d e d . ) 11
IPR2014-00070 Patent 8,112,504 66 For PETITIONER: NICHOLAS A. BROWN, ESQ. Greenberg Traurig LLP 4 Embarcadero Center, Suite 3000 San Francisco, CA 94111 415-655-1271 and RICHARD C. PETTUS, ESQ. Greenberg Traurig LLP 200 Park Avenue New York, New York 10166 212-801-9387 For PATENT OWNER: MICHAEL J. FEMAL, ESQ. Much Shelist, P.C. 191 North Wacker, Suite 1800 Chicago, Illinois 60606-2000 312-521-2768
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Fri, 10 Apr 2015 20:35
Trials@uspto.gov Paper 41 571-272-7822 Entered: April 10, 2014 UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ ELECTRONIC FRONTIER FOUNDATION Petitioner, v. PERSONAL AUDIO, LLC Patent Owner. ____________ Case IPR2014-00070 Patent 8,112,504 B2 ____________ Before SHERIDAN K. SNEDDEN, TRENTON A. WARD, and GREGG I. ANDERSON, Administrative Patent Judges. ANDERSON, Administrative Patent Judge. FINAL WRITTEN DECISION 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
Case IPR2014-00070 Patent 8,112,504 B2 2 INTRODUCTION On October 30, 2013, Electronic Frontier Foundation (''Petitioner'') filed a revised Petition requesting an inter partes review of claims 31''35 of U.S. Patent No. 8,112,504 B2 (Ex. 1001, ''the '504 patent''). Paper 6 (''Pet.''). On April 18, 2014, we granted the Petition and instituted trial for claims 31''35 of the '504 patent on less than all of the grounds of unpatentability alleged in the Petition. Paper 21 (''Decision on Institution'' or ''Dec.''). After institution of trial, Personal Audio, LLC (''Patent Owner'') filed a Patent Owner Response. Paper 30 (''PO Resp.''). Petitioner filed a Reply. Paper 34 (''Pet. Reply''). An oral hearing was held on December 17, 2014. The transcript of the hearing has been entered into the record. Paper 40 (''Tr.''). We have jurisdiction under 35 U.S.C. § 6(c). This Final Written Decision is issued pursuant to 35 U.S.C. § 318(a). A. Related Proceedings Petitioner indicates the '504 patent is involved in co-pending proceedings, including: (i) Personal Audio, LLC v. CBS Corp., No. 2:13-cv-270 (E.D. Tex. Apr. 11, 2013); (ii) Personal Audio, LLC v. NBC Universal Media, LLC, No. 2:13-cv-271 (E.D. Tex. Apr. 11, 2013); (iii) Personal Audio, LLC v. Ace Broadcasting Network, LLC, No. 2:13-cv-14 (E.D. Tex. Jan. 7, 2013); (iv) Personal Audio, LLC v. Howstuffworks.com, No. 2:13-cv-15 (E.D. Tex. Apr. 10, 2013); (v) Personal Audio, LLC v. Togi Entertainment, Inc., No. 2:13-cv-13 (E.D. Tex. Jan. 7, 2013); (vi) Fox Networks Group, Inc. v. Personal Audio, LLC, No. 1:13-cv-11794 (D. Mass.
Case IPR2014-00070 Patent 8,112,504 B2 3 July 26, 2013); and (vii) Personal Audio, LLC v. Fox Broadcasting Co., No. 2:13-cv-577 (E.D. Tex. Aug. 6, 2013). Pet. 1''2, Paper 28. B. The '504 patent The '504 patent broadly relates to a player for audio programming, which includes functions that allow the listener to control many aspects of the playback. Ex. 1001, 2:21''56. As relevant to the claims under consideration, the '504 patent relates to how audio program segments are distributed to client subscriber locations. Ex. 1001, Abstract. Figure 1 of the '504 patent is reproduced below: Figure 1 is a block diagram of the invention that illustrates using the Internet to connect host computer 101 to audio player 103. Ex. 1001, 4:39''42. Host server 101 periodically transmits download compilation file 145 upon receiving a request from player 103. Id. at 6:60''62. The compilation file extracts data from library 130 based on the selections of the user as specified
Case IPR2014-00070 Patent 8,112,504 B2 4 in the subscriber data and usage log database 143. Id. at 7:3''9. The file is placed in a predetermined FTP download file directory and assigned a filename known to the player. Id. at 6:62''64. Using clock 106, at a time determined by the player, a dial up connection is established via service provider 121 and the Internet to FTP server 125, and the download compilation is transferred to program data store 107 in the player. Id. at 6:64''7:1. Once downloaded, the user plays program data 107 using the functionality of the player. Id. at 4:44''60. The invention includes the ability for the user to select a program segment, which may represent an episode in a series. Ex. 1001, 19:35''38. When a serialized sequence is requested, the host may download less than all of the episodes, when all are not yet available. Id. at 19:45''49. Episodes that have not issued yet may be selected. Id. at 20:64''21:3. C. Illustrative Claim Claim 31 is the only independent claim challenged and is reproduced below: 31. Apparatus for disseminating a series of episodes represented by media files via the Internet as said episodes become available, said apparatus comprising: one or more data storage servers, one or more communication interfaces connected to the Internet for receiving requests received from remotely located client devices, and for responding to each given one of said requests by downloading a data file identified by a URL specified by said given one of said requests to the requesting client device, one or more processors coupled to said one or more data storage servers and to said one or more communications interfaces for:
Case IPR2014-00070 Patent 8,112,504 B2 5 storing one or more media files representing each episode as said one or more media files become available, each of said one or more media files being stored at a storage location specified by a unique episode URL; from time to time, as new episodes represented in said series of episodes become available, storing an updated version of a compilation file in one of said one or more data storage servers at a storage location identified by a predetermined URL, said updated version of said compilation file containing attribute data describing currently available episodes in said series of episodes, said attribute data for each given one of said currently available episodes including displayable text describing said given one of said currently available episodes and one or more episode URLs specifying the storage locations of one or more corresponding media files representing said given one of said episodes; and employing one of said one or more communication interfaces to: (a) receive a request from a requesting client device for the updated version of said compilation file located at said predetermined URL; (b) download said updated version of said compilation file to said requesting client device; and (c) thereafter receive and respond to a request from said requesting client device for one or more media files identified by one or more corresponding episode URLs included in the attribute data contained in said updated version of said compilation files. D. Grounds Upon Which Trial Was Instituted Inter partes review was instituted on two ground: (1) that claims 31''35 of the '504 patent were anticipated under 35 U.S.C.
Case IPR2014-00070 Patent 8,112,504 B2 6 § 102(a) by Patrick/CBC;1 and (2) claims 31''35 would have been obvious under 35 U.S.C. § 103(a) over Compton/CNN.2 Dec. 26. ANALYSIS A. Claim Construction In an inter partes review, claim terms in an unexpired patent are interpreted according to their broadest reasonable construction in light of the specification of the patent in which they appear. 37 C.F.R. § 42.100(b); In re Cuozzo Speed Techs., LLC, 778 F.3d 1271, 1279''83 (Fed. Cir. 2015). If an inventor acts as his or her own lexicographer, the definition must be set forth in the specification with reasonable clarity, deliberateness, and precision. Renishaw PLC v. Marposs Societa' per Azioni, 158 F.3d 1243, 1249 (Fed. Cir. 1998). The terms also are given their ordinary and customary meaning as would be understood by one of ordinary skill in the art in the context of the disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). 1. ''episode'' (Claims 31''35) Petitioner proposes ''episode'' be construed as ''a program segment, represented by one or more media files, that is part of a series of related segments, e.g. a radio show or a newscast.'' Pet. 11''12; Pet. Reply 8. Petitioner notes that the Specification describes an episode as a program segment that is part of a series (i.e., a sequence of related segments). 1 Andrew S. Patrick, et al, CBC Radio on the Internet: An Experiment in Convergence, 21 CANADIAN J. OF COMM'N 1, 125-140 (1996)(''Patrick/CBC,'' Ex. 1012). 2 Charles L. Compton, Internet CNN NEWSROOM: The Design of a Digital Video News Magazine, Massachusetts Institute of Technology (Aug. 10, 1995)(''Compton/CNN,'' Ex. 1022).
Case IPR2014-00070 Patent 8,112,504 B2 7 Pet. 11, (citing Ex. 1001, 19:35''42). Petitioner also argues that ''program segment[s]'' may be combined with other ''related program segments'' to form a subsection of the overall compilation. Pet. Reply 6''8 (citing Ex. 1001, 29:28''34). Petitioner argues the related program segments disclosed in the '504 patent include, among other things, world, national and local news. Id. (citing Ex. 1001, 30:18''25). Patent Owner proposes that ''episode'' should be construed as ''a program, represented by one or more media files, that is a part of a series.'' PO Resp. 10 (emphasis omitted). Patent Owner notes that the '504 patent references the episodes in a serialized sequence.'' Id. at n. 3. Patent Owner also cites to the Specification as stating that: . . . programming may include serialized sequences of programs. A given program segment may represent an episode in a series which is selected as a group by the subscriber. Id. (citing Ex. 1001, 19:36''37; see Ex. 1001, 19:35''20:11; 20:57''21:3; 39:35''46; 43''45:67; 46:1''52:11). Notwithstanding the preceding, Patent Owner argues our final construction of ''episode'' is not determinative of the outcome here because ''episode,'' as well as ''compilation file,'' are ''further qualified by the plain and ordinary meaning of other claim language,'' which is dispositive. PO Resp. 11 (emphasis omitted). To summarize the parties' respective positions, Petitioner proposes that episodes are related program segments. Patent Owner argues that an episode is a program, not a segment thereof, that is part of a series. At the final hearing, Patent Owner argued the difference between episodes and segments is that episodes must be related to each other, while segments are not related. Tr. 22:14''21. However, Patent Owner acknowledges that the
Case IPR2014-00070 Patent 8,112,504 B2 8 Specification states that a given ''program segment may represent an episode in a series.'' PO Resp. 10, n.3. The Specification lists several forms of programming that a ''subscriber may select.'' See Ex. 1001, 19:38''42.3 In that portion of the Specification cited by both parties, the only mention of ''episode'' states that ''[a] given program segment may represent an episode in a series which is selected as a group by the subscriber.'' Id. at 19:36''38 (emphasis added). In support of its construction, Patent Owner argued at the final hearing episodes are television programs. Tr. 25:14''18; 40:1''7. The Specification is not so limited and lists, among other things, news programming as part of the ''overall program compilation.'' Ex. 1001, 29:8''12; 30:18''25. We are not persuaded by Patent Owner's argument that the Specification is limited to segments and the claims refer to episodes. See Tr. 26:16 ''20. Neither party argued that the limitation ''series of episodes,'' as it appears in the preamble of challenged claim 31, has any different meaning from ''episode'' alone. We give ''series,'' and therefore, ''series of episodes,'' its ordinary and customary meaning in the context of our construction of ''episode.'' Thus, we conclude that related program segments are included in the broadest reasonable interpretation of ''episode.'' We construe ''episode'' to mean ''a program segment, represented by one or more media files, which is part of a series of related segments, e.g., a radio show or a newscast.'' 3 Neither declarant proposes or argues claim construction for any claim term. See Declaration of Chris Schmandt (''Schmandt Declaration,'' Ex. 1002 ¶ 11); Declaration of Peter C. Nelson (''Nelson Declaration,'' Ex. 2004 ¶¶ 37''39).
Case IPR2014-00070 Patent 8,112,504 B2 9 2. ''compilation file'' (Claims 31''35) Petitioner proposes ''compilation file'' be construed as ''any file that contains information about multiple episodes and satisfies the other claim requirements.'' Pet. 12''13; Pet. Reply 8. Petitioner argues that the Specification describes the ''compilation file'' as simply an ordinary file that contains the information required by the claim. Id. (citing Ex. 1001, 6:60''64, 7:10''22). Patent Owner contends that our construction of particular words or phrases is ''not material'' to Patent Owner's arguments in its Response. PO Resp. 11. Rather, the words or phrases, particularly ''compilation file,'' are ''further qualified by the plain and ordinary meaning of other claim language.'' Id.(emphasis omitted). As a result of the preceding, Patent Owner has no proposed construction for ''compilation file.'' In our Decision on Institution we preliminarily construed compilation file as ''a file that contains episode information.'' Dec. 8. This construction was supported by, among other things, the Specification, which describes the compilation file as ''one or more subscriber and session specific files which contain the identification of separately stored sharable files.'' Id. (citing Ex. 1001, 7:10''13). Episode information in the compilation file of claim 31, which states the ''compilation file contain[s] . . . attribute data describing currently available episodes in said series of episodes.'' At the final hearing, Patent Owner objected to our preliminary construction because it included the term ''episode,'' but did not articulate any reason for the objection to the inclusion of episode. Tr. 32:10''14. Patent Owner argues additionally that the cited references do not include a compilation file at all. Tr. 32:15''22. However, Patent Owner does not
Case IPR2014-00070 Patent 8,112,504 B2 10 make any specific argument regarding how we should construe ''compilation file.'' Instead, Patent Owner's argument relies on arguments relating to its proposed construction of ''episode.'' Tr. 33:3''34:23. As discussed above, we also have considered the claim language, which Patent Owner argues qualifies the construction of compilation file. PO Resp. 11. Claim 31 recites, in pertinent part, ''storing an updated version of a compilation file in one of said one or more data storage servers at a storage location identified by a predetermined URL.''4 Claim 31 (emphasis added). Patent Owner contends that the ''updated compilation file'' includes information from previous compilation files. Tr. 46:17''21. As used in claim 31, however, ''updated'' does modify ''compilation file,'' but rather it modifies ''version.'' The meaning of ''updated'' does not require express construction. Thus, we determine the broadest reasonable interpretation of ''compilation file'' is ''a file that contains episode information.'' 3. ''media file'' (Claims 31''35) Petitioner proposes that ''media file'' be construed as ''a file with content that can be reproduced as video, audio, and/or text.'' Pet. 13; Pet. Reply 9. Petitioner points to claims 32 and 33 as reciting that the media file includes ''digital compressed audio'' and/or ''text data.'' Id. (citing Ex. 1001, claims 32''33). Patent Owner does not propose a meaning for the term and does not object to our preliminary construction in the Decision on Institution. See PO Resp. 9''11. 4 Claim 1, which is not challenged here, also references the ''current version'' of a compilation file.
Case IPR2014-00070 Patent 8,112,504 B2 11 The Specification does not define or describe the term ''media files'' beyond the recitation of the term in the claims. The customary and ordinary meaning of ''media'' is consistent with Petitioner's proposed construction of ''media files.'' Thus, we determine the broadest reasonable interpretation of ''media files'' is ''a file with content that can be reproduced as video, audio, and/or text.'' B. Obvious over Compton/CNN (Claims 31''35) Petitioner contends that claims 31''35 of the'504 patent are obvious under 35 U.S.C. § 103 over Compton/CNN (Ex. 1022). Pet. 16, 45''59. To support this position, Petitioner presents the Schmandt Declaration. Ex. 1002 ¶¶ 72''85. 1. Compton/CNN Overview Compton/CNN describes the design of a digital video newsroom based on the video program CNN NEWSROOM.5 Ex. 1022, Abstract. Compton/CNN describes that the CNN NEWSROOM uses MPEG digital video and is distributed via the World Wide Web on the Internet. Id. CNN NEWSROOM is disclosed as being distributed via cable television systems as well as directly to schools via satellite. Ex. 1022, 11.6 Compton/CNN describes that an important aspect of the Internet deployment of CNN NEWSROOM is the development of a searchable digital library of 5 Exhibit 1022 also uses ''CNN Internet NEWSROOM,'' ''Internet CNN NEWSROOM,'' and ''Internet NEWSROOM.'' We generally will refer to these disclosed video programs as ''CNN NEWSROOM.'' 6 Page references are to the actual page numbers of Exhibit 1022 and not to Petitioner's Exhibit pages.
Case IPR2014-00070 Patent 8,112,504 B2 12 CNN NEWSROOM programs and segments. Id. at 14. CNN NEWSROOM is disclosed as being archived for six months. Id. at 15. Figure 1 of Compton/CNN is reproduced below. Figure 1 shows the Table of Contents for a particular day's programming. Ex. 1022, 14. Figure 1 further shows the Table of Contents as an HTML document that consists of a short summary and an icon or title for each segment of the program, where a segment corresponds to a single news story. Id.
Case IPR2014-00070 Patent 8,112,504 B2 13 Figure 6 of Compton/CNN is reproduced below. Figure 6 illustrates a hardware hierarchy for network video distribution. Ex. 1022, 23''24. Caching proxy servers store video content. Id. Only one caching server is required for Internet connectivity. Id. at 23. Ultimately, video is delivered over the Internet to the subscribing caching servers for display. Ex. 1022, 25. The programming includes past episodes of other news programs, sitcoms, and soap operas. Id. at 29. 2. Claims 31''35 as Obvious over Compton/CNN We begin our obviousness analysis by determining the level of ordinary skill in the art. KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007)(citing Graham v. John Deere Co., 383 U.S. 1, 17''18 (1966)). At the final hearing Patent Owner relied on the Nelson Declaration to argue the level of ordinary skill is not a ''high level.'' Tr. 29:1''12. The Nelson Declaration says the level of ordinary skill is an ''undergraduate degree in
Case IPR2014-00070 Patent 8,112,504 B2 14 computer science or a few years' experience in working with web sites and programming.'' Ex. 2004 ¶ 34. We find credible the Nelson Declaration's testimony that at the time the invention was conceived, 1994''1996, web developers did not necessarily have formal training. Id. Petitioner agrees with Patent Owner's position. Tr. 64:21''65:2. Thus, we adopt the level of ordinary skill proposed by Patent Owner. Petitioner contends the disputed limitations of claim 31 are taught by Compton/CNN specifically including: (1) episodes; (2) an updated compilation file; and (3) a ''predetermined URL'' for the compilation file. See Pet. Reply 1. Patent Owner statement of the issues is very similar, i.e., that neither Compton/CNN or Patrick/CBC (discussed below) disclose claim limitations related to new episodes, updating the compilation file, and a predetermined URL for the compilation file. PO Resp. 46''47 (citing Ex. 2004 ¶¶ 18, 21, 56, 61, 63). We first address the limitations both parties find to be in dispute. To the extent not addressed in our analysis, Patent Owner's arguments that other claim 31 limitations or dependent claim limitations are not shown will be addressed separately. See PO Resp. 35''37; Ex. 2004 ¶¶ 51''63. a. Whether Compton/CNN teaches ''episodes'' Petitioner argues CNN Newsroom describes a system for distributing a ''video magazine'' via the Internet. Pet. 53 (citing Ex. 1022, 13). Further, the video broadcast each day by CNN Newsroom is broken out into segments that each ''corresponds to a single news story.'' Id. (citing Ex. 1022 at 14). Compton/CNN teaches that the segments were encoded in MPEG-1 media files. Id. (citing Ex. 1022 at 7). Petitioner notes that Compton/CNN explains that the same system could be used for ''any other
Case IPR2014-00070 Patent 8,112,504 B2 15 program for which users might want to be able to see past episodes (i.e., other news programs, sitcoms, soap operas . . . [)]'' Id. (citing Ex. 1022 at 29). Petitioner argues that the ''displayable text'' in the Table of Contents describes the ''episode,'' i.e., segment. Pet. 56, Pet. Reply 6. Petitioner contends the Table of Contents includes URLs specifying media files representing the ''episode'' which can be downloaded. Id. (citing Ex. 1002 ¶¶ 24''33; see also Ex. 1022 at 25 (user clicking on a link an entire MPEG file is downloaded to user's hard disk). Petitioner argues that testimony by Patent Owner's declarant, Dr. Nelson, at his deposition (Ex. 1031), supports its position that Compton/CNN teaches ''episodes.'' Pet. Reply 6. Specifically, Dr. Nelson, at his deposition, acknowledges that, under our construction of ''episode,'' Compton/CNN Figure 1 discloses ''episodes.'' Id. (citing Ex. 1031, 88:14''24. Patent Owner's opposition to a determination that ''episodes'' are not disclosed in Figure 1 of Compton/CNN relies on our accepting its construction of ''episode.'' As discussed above, Patent Owner argues ''episode'' should be construed as ''a program, represented by one or more media files, that is a part of a series.'' PO Resp. 10 (emphasis omitted). Thus, based on its proposed construction that an episode is part of a ''series,'' Patent Owner contends the news stories of Figure 1 of Compton/CNN are ''not different episodes but rather part of the single May 19, 1994 episode.'' Id. at 38. Patent Owner also argues the news segments are neither a series nor are they a program. Id. at 38''39.
Case IPR2014-00070 Patent 8,112,504 B2 16 Our construction of ''episode,'' however, leads us to reject Patent Owner's argument that episodes must be either a program or in a given order. See Tr. 39:24''40:7. Nor are we persuaded that a theme between episodes is required. Tr. 38:6''11. As we noted in our construction analysis, the Specification specifically lists new programming as being part of a compilation file of ''episodes.'' Ex. 1001, 30:18''25. Additionally, Patent Owner argues the May 19 news segments disclosed in Compton/CNN are not ''updated,'' as claim 31 requires. Id. at 39. This argument relates to the ''updated version of a compilation file'' limitation, which we discuss next. Petitioner has shown sufficient evidence to establish, by a preponderance of the evidence, Compton/CNN discloses ''episodes'' as claimed. b. Whether Compton/CNN teaches an ''updated version of a compilation file'' Claim 31 recites that a ''compilation file'' is updated from ''time to time, as new episodes represented in said series of episodes become available.'' As already discussed, the Table of Contents of Compton/CNN (see Figure 1 above) is relied on by Petitioner to show a ''compilation file.'' Pet. 55 (citing Ex. 1002 ¶ 78). Petitioner argues that the ''displayable text'' in the Table of Contents describes the ''episode,'' i.e., segment. Id. at 56. Petitioner contends it would have been obvious to update the compilation file as new segments are produced. Id. at 50 (citing Ex. 1002 ¶ 78; 1022, 13''14). In the first instance, Patent Owner argues the Table of Contents of Compton/CNN is not a compilation file at all because it ''described one
Case IPR2014-00070 Patent 8,112,504 B2 17 episode only.'' PO Resp. 40. Based on our construction of ''episode'' and ''compilation file,'' there are two news segments, i.e., ''episodes,'' identified in the Table of Contents of Compton/CNN. Accordingly, we disagree with Patent Owner's premise, that the two news segments, i.e., ''episodes,'' identified in the Table of Contents are only a single episode. Furthermore, we are persuaded that the Table of Contents is a ''compilation file'' as we have construed the term, i.e., ''a file that contains episode information.'' Additionally, Patent Owner argues the Table of Contents page is devoted to a single day, May 19, 1994, and, therefore, is ''not updated as new episodes become available.'' PO Resp. 39 (emphasis in original). Patent Owner contends each day a different Table of Contents page at a different URL is created. Id. Petitioner responds that ''the fact that a contents.html file is stored at a different URL for each day does not imply that the contents.html file is not 'updated.''' Pet. Reply 3. Petitioner contends the program ''contents.c'' runs each day and a new version of the contents.html file ''describes the news segments that became available that day.'' Id. (citing Ex. 1022, Fig. 3,18''19, 13''14)(emphasis in original). . Petitioner again cites to Dr.Nelson's deposition for testimony that Compton/CNN describes updating the ''contents.html'' file. Id. (citing Ex. 1031, 91:15''18; see 90:10''91:14). As Petitioner argues, the updated ''compilation file'' limitation is met if the ''compilation file'' is overwritten. Pet. Reply 4. Patent Owner argued at the final hearing that updating required some information be retained from the previous compilation file. Tr. 46:17''21. Patent Owner's basis for this position is that the Table of Contents contains a single ''episode,'' and not a series of episodes or ''[a]ll of the episodes required for a compilation.''
Case IPR2014-00070 Patent 8,112,504 B2 18 Tr.47:15''22, 48:18''23. We have determined already that the Table of Contents includes more than one segment, i.e., ''episodes.'' There is no claim language limiting how the updating of the compilation file occurs. Claim 31 states that as ''new episodes'' become available, an ''updated version of the compilation file'' is created including the new episodes. Ex.1001, 50:52''53. We have reviewed the Nelson Declaration, which states that Compton/CNN discloses ''HTML that was present at a single point'' and does not include ''disclosure that the HTML was updated.'' Ex. 2004 ¶ 52. This is the same contention rejected above, that the Table of Contents, i.e., the ''HTML . . . at a single point,'' must be updated with new information on an ongoing basis. Other testimony from the Nelson Declaration relating to updated compilation files does not persuade us differently. See, e.g., Ex. 2004 ¶ 61. Because the claim language does not include a limitation that would prohibit creating a new file on a daily basis from being an update, we find that Compton/CNN teaches an updated compilation file. The episodes listed in one compilation file for one day which are updated for the next day are related segments concerning the news. See Ex. 1022, 10. The new episode is thus listed in the updated compilation file, as required by claim 31. Even if we accept Patent Owner's argument regarding updating, we agree with Petitioner that it would have been obvious to update the Table of contents by ''amendment'' as opposed to creating a new file on a daily basis. Pet. Reply 4. According to the Schmandt Declaration, the ''URL is partially visible in Figure 1 '' the table of contents was accessed at: http://www.nmis.org/NewsInteractive/CNN/Newsroom/940519/cont[ents.ht
Case IPR2014-00070 Patent 8,112,504 B2 19 ml].'' Ex. 1002 ¶ 78. ''[I]t would require only a trivial modification to use the described system to create an updated table of contents HTML file at a single predetermined URL, such as 'todaysnews.html.''' Id. ¶ 79. We are persuaded by a preponderance of the evidence that Petitioner's rationale for obviousness is supported by rational underpinnings. KSR 550 U.S. at 418. For example, Compton/CNN already archives past programming on the server, making that programming separately accessible to users. See Ex. 1022, 15. We agree that making all the programming available at a single URL would have been a ''trivial modification'' obvious to a person of ordinary skill in the art. See, e.g., Ex. 1002 ¶ 79. Petitioner has shown sufficient evidence to establish, by a preponderance of the evidence, Compton/CNN discloses an updated ''compilation file'' as claimed. c. Whether Compton/CNN includes a ''predetermined URL'' Compton/CNN discloses the automatic generation of a WWW user interface for daily content. Ex. 1022, 7. Further, Compton/CNN captures video using the FTP protocol and delivers the files to the server. Id. at 22. Compton/CNN discloses links to the listed content in its teaching that ''[c]ustom software agents have been developed to automatically generate the WWW user interface for the service based on daily content.'' Id. at 7. Compton/CNN goes on to state ''[t]his means that results can be delivered to any host on the Internet supporting the ftp protocol.'' Id. at 22. Petitioner relies upon these disclosures and the testimony in the Schmandt Declaration to argue links in the Table of Contents would be understood to be unique episode URLs. Pet. 55 (citing Ex. 1002 ¶ 77).
Case IPR2014-00070 Patent 8,112,504 B2 20 Patent Owner again contends that the Table of Contents of Compton/CNN discloses a single episode only and not a series of episodes. PO Resp. 39. The Nelson Declaration is cited for support that Compton/CNN does not disclose ''a single predetermined URL where a user can access multiple episodes of a series of episodes at a single place.'' Id. at 47 (citing Ex. 2004 ¶¶ 58''59). This argument is not persuasive for reasons already discussed. Specifically, the Table of Contents includes information about at least two episodes. Petitioner has shown sufficient evidence to establish, by a preponderance of the evidence, Compton/CNN discloses a ''predetermined URL'' as claimed. d. Additional Claim Limitations Patent Owner argues other limitations of claim 31 and the dependent claims are not taught by Compton/CNN. PO Resp. 35''37; Ex. 2004 ¶¶ 51''63. Patent Owner provides a claim chart reproducing in bold claim limitations it contends are not disclosed or suggested by Compton/CNN. PO Resp. 35''37; Ex. 2004 ¶¶ 51''63. The claim chart is unpersuasive that any claim limitation is missing. Patent Owner does not argue the computer components claimed, i.e., servers, communications interfaces, processors, or requesting client device, are not disclosed to a person of ordinary skill. See Tr. 29:13''30:2; 42:7''44:4. The Schmandt Declaration supports the conclusion that the presence of such components would be trivial to the person of ordinary skill in the art.
Case IPR2014-00070 Patent 8,112,504 B2 21 Ex. 1002 ¶ 47 (disclosure of a ''server . . . necessarily would have included processors and a communication interface'').7 Patent Owner additionally cites to the Nelson Declaration for its contention that Compton/CNN lacks disclosure of certain claim limitations. PO Resp. 45''47. Patent Owner's Response states that the Nelson Declaration ''[i]n essence'' supports the Response. Id. at 46. As specifically pertinent to Compton/CNN, Patent Owner restates the argument we rejected above that ''at most, Compton/CNN discloses HTML that was present at a single point.'' Id. at 47 (citing Ex. 2004 ¶¶ 52, 58''59). We have reviewed paragraphs 51 through 63 of the Nelson Declaration. See Ex. 2004 ¶¶ 51''63. These paragraphs discuss Compton/CNN, alleging limitations discussed previously here are not present and alleging the Schmandt Declaration is conclusory regarding obviousness. Id. The Nelson Declaration presents no new arguments for our consideration regarding claim 31. e. Dependent Claims 32''35 We also have reviewed the Petitioner's argument and evidence and claim charts in connection with dependent claims 32''35. Pet. 51''53, 57''59. The argument is supported by the Schmandt Declaration. Ex. 1002 ¶¶ 82''85. Patent Owner goes through the limitations of claims 32''35 in the Examiner's Reasons for Allowance section discussed immediately below. PO Resp. 45. Patent Owner makes no specific argument regarding the 7 Althoughthis testimony relates specifically to the Geek of the Week references (Exs. 1008''1011, 1019''1020, and 1023''1028), on which we did not institute trial, we credit it for the discussion of basic Internet hardware components.
Case IPR2014-00070 Patent 8,112,504 B2 22 dependent claims other than stating that the elements argued as not taught by Compton/CNN in connection with claim 31 are likewise missing from the dependent claims 32''35. Id. at 44. This argument is unpersuasive for reasons discussed above in connection with claim 31 f. Examiner's Reasons for Allowance Patent Owner contends the grounds under review do not address the Examiner's Reasons for Allowance. PO Resp. 43''45. The Reasons for Allowance states, in part: The prior art does not provide for nor suggest for updating/downloading current version of a compilation file containing attribute data describing episodes and including one or more episode URLs identifying one or more corresponding media files representing said given one of said episodes. PO Resp. 44 (see Prosecution History of '504 patent, Ex. 2002, 2) (emphasis omitted). We are not bound by an Examiner's determinations in the prosecution of a patent in an inter partes review proceeding. To the extent Patent Owner points out that the Examiner had reasons for allowing the claims, we acknowledge those reasons. The record here does not disclose that the Examiner was considering the Compton/CNN reference when drafting the Reasons for Allowance. 3. Conclusion Regarding Claims 31''35 as Obvious over Compton/CNN Petitioner has shown sufficient evidence to establish, by a preponderance of the evidence, that claims 31''35 would have been obvious under 35 U.S.C. § 103(a) over Compton/CNN.
Case IPR2014-00070 Patent 8,112,504 B2 23 C. Claims 31''35 as Anticipated by Patrick/CBC Petitioner alleges Patrick/CBC is prior art anticipating claims 31''35 of the'504 patent under 35 U.S.C. § 102(a).8 Pet. 16, 35''45. Petitioner relies on the Schmandt Declaration to support its position. Ex. 1002 ¶¶ 58''71. Petitioner's supporting argument for anticipation relies heavily on the Schmandt Declaration and what a person of ordinary skill would understand from what is disclosed in the four corners of the Patrick/CBC reference. See, e.g., Ex. 1002 ¶¶ 66''67; see Tr. 17:17''20. Patent Owner contends that Petitioner must rely on inherency to find that Patrick/CBC discloses certain claim limitations. PO Resp. 26. Patent Owner's statement is based on Petitioner's reliance on the Schmandt Declaration for what a person of ordinary skill would understand from Patrick/CBC, as well as our analysis in the Decision on Institution. Id. In order for a prior art reference to serve as an anticipatory reference, it must disclose every limitation of the claimed invention, either explicitly or inherently. In re Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997). We must analyze prior art references as a skilled artisan would. See Scripps Clinic & Res. Found. v. Genentech, Inc., 927 F.2d 1565, 1576 (Fed. Cir. 1991), overruled on other grounds by Abbott Labs. v. Sandoz, Inc., 566 F.3d 1282 (Fed. Cir. 2009) (to anticipate, ''[t]here must be no difference between the claimed invention and the reference disclosure, as viewed by a person of ordinary skill in the field of the invention''). As the Federal Circuit has held: 8 The '504 patent was filed prior to the effective date of § 102, as amended by the AIA'--March 16, 2013'-- and is governed by the pre-AIA version of § 102(a). See AIA § 3(n)(1).
Case IPR2014-00070 Patent 8,112,504 B2 24 This modest flexibility in the rule that ''anticipation'' requires that every element of the claims appear in a single reference accommodates situations where the common knowledge of technologists is not recorded in the reference; that is, where technological facts are known to those in the field of the invention, albeit not known to judges. It is not, however, a substitute for determination of patentability in terms of § 103. Cont'l Can Co. USA v. Monsanto Co., 948 F.2d 1264, 1268''69 (Fed. Cir. 1991). A claim limitation is inherent if it is necessarily present in the prior art, not merely probably or possibly present. Akami Techs., Inc. v. Cable & Wireless, 344 F.3d 1186, 1192 (Fed. Cir. 2003). As with Compton/CNN, with respect to Patrick/CBC, the parties focus on claim limitations related to episodes, updating the compilation file, and a predetermined URL for the compilation file. Pet. Reply 1: PO Resp. 46''47 (citing Ex. 2004 ¶¶ 18, 21, 56, 61, 63). 1. Patrick/CBC Overview Patrick/CBC discloses an experimental trial to determine, among other things, if there was any demand for regular radio programming distributed as digital audio files over the Internet. Ex. 1012, Abstract. Patrick/CBC alleges that the trial is ''the first time that audio programs produced for traditional radio broadcasts have been made available on the Internet on a regular basis.'' Id. at 2.9 CBC Radio programming was stored on a server and the resulting program files were made available using standard Internet server software. Id. at 2''3. 9 Page references are to the actual page numbers of Exhibit 1012, and not Petitioner's Exhibit pages.
Case IPR2014-00070 Patent 8,112,504 B2 25 a. Whether Patrick/CBC discloses ''episodes'' Patrick/CBC discloses radio programming on the Internet, including Quirks & Quarks, a science magazine show. Ex. 1012, 5. The show was updated regularly on the server. Id. Petitioner cites to the preceding disclosure to meet the ''episode'' limitation. Pet. 40 (citing Ex. 1002 ¶ 60). Patent Owner makes no specific challenge that Patrick/CBC discloses episodes, focusing instead on the ''compilation file'' and ''predetermined URL'' limitations. PO Resp. 15''16. Petitioner has shown sufficient evidence to establish, by a preponderance of the evidence, that Patrick/CBC discloses ''episodes'' as claimed. b. Whether or not Patrick/CBC discloses an ''updated version of a compilation file'' Petitioner cites generally to a server which automatically is updated with new programming. Pet. 41''42 (citing Ex. 1012, 3; see Ex. 1012, 5). For example, ''the Quirks & Quarks science magazine show was recorded each week, broken down into its component parts, and made available on the server.'' Id. at 42 (citing Ex. 1012, 7). Further, ''users could select those portions of the show that interested them and download the appropriate audio file.'' Pet. Reply 11''12 (citing Ex. 1012, 5). Petitioner cites this disclosure as showing the compilation file. Pet. 42, Pet. Reply 11''12. The Schmandt Declaration cites to Patrick/CBC's disclosure that radio shows are stored on a server in an HTML file at ftp://www.radio.cbc.ca or http://www.radio.cbc.ca/. Ex. 1002 ¶ 64. Based on these disclosures from Patrick/CBC, the Schmandt Declaration concludes ''[a]n ordinary artisan would understand this to mean an HTML file (i.e. a compilation file).'' Id.
Case IPR2014-00070 Patent 8,112,504 B2 26 Given our construction of ''compilation file'' as ''a file that contains episode information,'' we agree that a person of ordinary skill would conclude that Patrick/CBC necessarily discloses a ''compilation file.'' Pet. 42 (citing Ex. 1002 ¶¶ 63''66). Patent Owner's declarant, in the Nelson Declaration, provides no analysis as to why Patrick/CBC does not disclose a ''compilation file.'' See Ex. 2004 ¶¶ 49''57. More importantly, none of the testimony questions whether a person of ordinary skill would understand the disclosure of Patrick/CBC to meet the recited limitation necessarily. Claim 31 specifically recites that the updated ''compilation file'' includes ''attribute data for each given one of said currently available episodes including displayable text describing said given one of said currently available episodes.'' (Emphasis added). Patent Owner contends that Patrick/CBC does not show the ''displayable text'' limitation. PO Resp. 16. At the final hearing Petitioner argued, however, that a person of ordinary skill in the art would recognize that a compilation file is present, even though no ''picture'' of such a compilation file exists. Tr. 17:1''22. We have reviewed the Schmandt Declaration and are persuaded that a person of ordinary skill would conclude that Patrick/CBC necessarily includes ''displayable text'' associated with the ''compilation file.'' We credit the testimony in the Schmandt Declaration that Patrick/CBC discloses that ''[e]ach show has a menu attached to it to describe the contents of the various parts.'' Ex. 1002 ¶ 64 (citing Ex. 1012, 7). Users would then ''select'' recordings that were of interest to them. Id. (citing Ex. 1012, 3). AlthoughPatrick/CBC does not state expressly that the menu includes ''displayable text,'' the menu selection lists the programs the user may select and necessarily is ''displayed'' so the user may select the programming.
Case IPR2014-00070 Patent 8,112,504 B2 27 Petitioner has shown sufficient evidence to establish, by a preponderance of the evidence, Patrick/CBC discloses updating the ''compilation file'' as claimed. c. Whether Patrick/CBC discloses a ''predetermined URL'' The Schmandt Declaration again cites to the disclosure that the server could be accessed at ftp://www.radio.cbc.ca or http://www.radio.cbc.ca/ as disclosing a ''predetermined URL.'' Ex. 1002 ¶ 64 (citing Ex. 1012, 7). The Schmandt Declaration concludes an ''ordinary artisan would understand this to mean an HTML file (i.e. a compilation file) with links to the episodes was stored at a predetermined URL.'' Id. As noted above, the Nelson Declaration does not contradict this testimony. Patent Owner argues that Mr. Schmandt admitted in his deposition that he did not know the specific URL of the ''compilation file,'' but it must exist for users to select audio programming. PO Resp. 19''20 (citing Ex. 2002, 13:19''24). Patent Owner acknowledges one of ordinary skill could ''perhaps'' infer program segments include URLs. These arguments, however, tend to support the Schmandt Declaration that URLs are present in Patrick/CBC for the selected programming. Petitioner has shown sufficient evidence to establish, by a preponderance of the evidence, that Patrick/CBC discloses ''predetermined URLs'' for the selected programming. d. Enablement The Nelson Declaration asserts Patrick/CBC is not enabled because code is not disclosed to effect its functionality. Ex. 2004 ¶ 55. Dr. Nelson at his deposition acknowledged that creating and updating an HTML website was within the level of ordinary skill. See Pet. Reply 13 (citing Ex. 1031,
Case IPR2014-00070 Patent 8,112,504 B2 28 77:19''82:10). Thus, we do not agree that code disclosure is required for enablement. f. Dependent Claims 32''35 We also have reviewed the Petitioner's argument and evidence and claim charts in connection with dependent claims 32''35. Pet. 44''45; 57''59. The argument is supported by the Schmandt Declaration. Ex. 1002 ¶¶ 68''71. Patent Owner makes no specific argument regarding the dependent claims other than stating the elements argued as not disclosed in Patrick/CBC. PO Resp. 17''19. Petitioner has shown sufficient evidence to establish, by a preponderance of the evidence, Patrick/CBC discloses the limitations of dependent claims 32''35. 3. Conclusion Regarding Claims 31''35 as Anticipated by Patrick/CBC Petitioner has shown sufficient evidence to establish, by a preponderance of the evidence, that claims 31''35 are anticipated under 35 U.S.C. § 102(a) by Patrick/CBC. CONCLUSION Petitioner has shown by a preponderance of the evidence that claims 31''35 would have been obvious over Compton/CNN and anticipated by Patrick/CBC.
Case IPR2014-00070 Patent 8,112,504 B2 29 ORDER For the reasons given, it is ORDERED that Petitioner has shown by a preponderance of the evidence that claims 31''35 of U.S. Patent No. 8,112,504 B2 are unpatentable; and FURTHER ORDERED that, because this is a final written decision, parties to the proceeding seeking judicial review of the decision must comply with the notice and service requirements of 37 C.F.R. § 90.2. For PETITIONER: Richard C. Pettus Nicholas A. Brown GREENBERG TRAURIG LLP pettusr@gtlaw.com brownn@gtlaw.com For PATENT OWNER: Robert W. Faris Updeep S. Gill NIXON & VANDERHYE P.C. rwf@nixonvan.com usg@nixonvan.com
EFF Busts Podcasting Patent, Invalidating Key Claims at Patent Office | Electronic Frontier Foundation
Fri, 10 Apr 2015 20:34
San Francisco - The U.S. Patent and Trademark Office (USPTO) invalided key claims in the so-called ''podcasting patent'' today after a petition for review from the Electronic Frontier Foundation (EFF)'--a decision that significantly curtails the ability of a patent troll to threaten podcasters big and small.
''We're grateful for all the support of our challenge to this patent. Today is a big victory for the podcasting community'' said EFF Staff Attorney Daniel Nazer, who also holds the Mark Cuban Chair to Eliminate Stupid Patents. ''We're glad the Patent Office recognized what we all knew: 'podcasting' had been around for many years and this company does not own it.''
The ''podcasting patent'' became big news in 2013, when a company called Personal Audio, LLC, began demanding licensing fees from podcasters including comedian Adam Carolla and three major television networks. Personal Audio doesn't do podcasting itself, but instead used its patent to claim infringement and collect payouts from actual creators.
In petitions filed with Patent Office, EFF showed that Personal Audio did not invent anything new before it filed its patent application, and, in fact, other people were podcasting for years previously. Earlier examples of podcasting include Internet pioneer Carl Malamud's "Geek of the Week" online radio show and online broadcasts by CNN and the Canadian Broadcasting Corporation (CBC).
''We have a lot to celebrate here,'' said EFF Staff Attorney Vera Ranieri. ''But unfortunately, our work to protect podcasting is not done. Personal Audio continues to seek patents related to podcasting. We will continue to fight for podcasters, and we hope the Patent Office does not give them any more weapons to shake down small podcasters.''
EFF partnered with attorneys working pro bono and the Cyberlaw Clinic at Harvard's Berkman Center for Internet and Society to craft the petition for review with the USPTO.
For the full decision on the Personal Audio ''podcasting patent'':https://www.eff.org/document/uspto-decision
US Breaks the Grip of Reviled "Podcasting Patent"
Sat, 11 Apr 2015 17:56
The much-reviled ''podcasting patent'' '-- initiated by a company called Personal Audio, LLC to demand licensing fees from podcasters '-- is now defunct, the Electronic Frontier Foundation (EFF) has reported.
The US Patent and Trademark Office (USPTO) today invalided key claims of that patent in response to a petition for review from the EFF. Today's order by the USPTO rejects the claim by Personal Audio and its founder, Jim Logan, that they are owed money by podcasters because of a US Patent 8,112,504 with a priority date of 1996, which refers to a ''system for disseminating media content representing episodes in a serialized sequence.''
This decision breaks a major grip of patent trolls over independent podcast creators of all sizes.
The controversy started in 2013 when Personal Audio started demanding licensing fees from podcasters, including comedian Adam Carolla and three major TV networks, with a claim that it had invented podcasting.
In response, the EFF launched a crowd-funded campaign to challenge that claim and have proved their case, citing earlier podcasts such as Carl Malamud's 'Geek of the Week' online radio show and online broadcasts by CNN and the Canadian Broadcasting Corporation.
Despite this defeat, the EFF said that Personal Audio is continuing to seek payments from podcasters.
Personal Audio does not now nor did it ever do any of its own podcasting, but used its 1996 patent to claim infringement and collect payment from others.
'ž¤ EFF Busts Podcasting Patent, Invalidating Key Claims at Patent Office
U.S. Patent Office: Patent Troll Does Not Entirely Own Concept of ''Podcasting'' '' Consumerist
Sun, 12 Apr 2015 13:06
''Podcasting'' might as well have been the word of the year in 2014, when ''Serial'' shot the form straight to the top of the pop-culture buzz charts for a few months. But while everyone in America was plugging in earbuds and trying to decide whodunit, the U.S. Patent Office had the more important end of the challenge: deciding who actually owns the patent for the idea of podcasting.In short? Score one for the good guys. The decision addresses a few very specific elements of the patent claim, but no, the U.S. Patent Office found, this company does not actually have the exclusive ownership of releasing episodic audio content over the internet in a regular, updated way.
The matter came to a hearing at the Patent Office last December. Personal Audio, your basic ''non-practicing'' patent troll entity, claimed that they owned a patent on the tech that allows podcasting to work, and therefore lots of big, powerful companies with deep pockets '-- like CBS and CNN '-- owe them money.
The Electronic Frontier Foundation, which often represents people and companies trying to assert their rights in the digital world, stepped in and challenged Personal Audio's claims last October, and the issue went to a hearing in December. The Patent Office released the result of that hearing today.
In their decision (PDF), the Patent Office works its way through the very, very specific arguments about wording and meaning. It is not unlike reading a geometric proof, in the way it builds a clear argument of facts and existing rulings. Ultimately, however, the dry legalese ends up with one result: the patent troll does not own podcasting.
''Petitioner [the EFF] has shown by a preponderance of the evidence that claims 31-35 of [the patents] are unpatentable,'' the order concludes. ''Because this is a final written decision, parties to the proceeding seeking judicial review of the decision must comply with the notice and service requirements.''
''We have a lot to celebrate here,'' EFF Staff Attorney Vera Ranieri said in a statement. ''But unfortunately, our work to protect podcasting is not done. Personal Audio continues to seek patents related to podcasting. We will continue to fight for podcasters, and we hope the Patent Office does not give them any more weapons to shake down small podcasters.''
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Katy Perry sics lawyers on Left Shark vendor - CNN.com
Sun, 12 Apr 2015 07:18
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You've survived the cultural phenomena that were the first and second "Sharknado" movies without a bite. Now, stars Tara Reid and Ian Ziering have agreed to reprise their roles in "Sharknado 3," scheduled for a summer 2015 release.
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Steven Spielberg's 1975 shark thriller "Jaws" gave birth to the summer blockbuster and a cultural love-hate relationship with swimming in the ocean. The filmmaker's classic also proved that these beasts were ready for their close-ups.
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Maybe we can blame our current obsession with sharks on the generation who grew up watching "Jabberjaw," ABC's animated series that ran from 1976 to 1978. The kids' show was reportedly inspired by "Jaws," but this version was far more cuddly; Jabberjaw held regular jam sessions with his human pals.
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Ever wondered where the phrase "jumped the shark" came from? You can thank the "Happy Days" writers for that one. In 1977, the beloved show took a plot turn it couldn't recover from when Henry Winkler's Fonzie literally "jumped a shark" while water skiing.
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Decades before Syfy became the home of shark-related comedy, "Saturday Night Live" introduced "the cleverest species of them all" in its "Land Shark" sketch. It featured Chevy Chase as the trickster shark who preyed on unsuspecting humans with the lure of telegrams and flowers.
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Disney's 1989 under-the-sea adventure "The Little Mermaid" began with a tense run-in with a shark. Unlike the chilling but affable characters Disney has produced lately, this shark was straight out of "Jaws" with its brutish strength and snapping teeth.
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Out of all the sharks in "Deep Blue Sea" -- like this guy seen terrorizing LL Cool J -- there's one that particularly stands out. In the 1999 film, Samuel L. Jackson was in the middle of giving a stirring speech when a toothy killer popped up from behind him and practically devoured him whole.
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Disney/Pixar brought Steven Spielberg's Bruce to life again in 2003's "Finding Nemo." This Bruce was just as terrifying -- especially to a clownfish dad hunting for his son -- but at least he tried to live by the rule that "fish are friends, not food."
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In 2004, the shark wave rolled on with DreamWorks' "Shark Tale," featuring the voices of Will Smith, Angelina Jolie, Renee Zellweger and Jack Black as Lenny the shark. With Hans Zimmer composing, the soundtrack had just as much bite.
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The build-up to "Sharknado" was quiet enough that many didn't see the cultural storm coming. Syfy didn't land monster ratings at first, but the film has had a long tail. Thanks to the intense fandom on Twitter, a sequel aired in summer 2014, and a third "Sharknado" will be out in summer 2015.
Greenberg Traurig Once Again Reports Revenue Increase and its Position as a Top Gaining Firm in Lateral Partner Hires; Elevates 29 Lawyers to Shareholder Status - Greenberg Traurig LLP
Sun, 12 Apr 2015 07:12
NEW YORK (Feb. 09, 2012) '-- The international law firm Greenberg Traurig, LLP reported 2011 gross revenue of $1.243 billion, again resulting in increased revenues and revenues per lawyer for the firm. The information was released as part of the annual survey of the largest law firms in the United States by The American Lawyer and The National Law Journal.
"We are not followers and recognize that our number of lawyers and gross revenues are only relevant if they actually result in greater client satisfaction and a positive culture and experience for our lawyers," said Richard A. Rosenbaum, Chief Executive Officer of Greenberg Traurig. "This approach, coupled with careful management, allows us to nimbly navigate our own path through a changing world and uncertain economic conditions, resulting in another year of stable and balanced financial performance."
Rosenbaum believes the firm's unique business strategy is the key to client and lawyer satisfaction across all cycles: "Our strategy sets us apart and resonates with clients and lawyers alike. First, we are one large global firm, not the result of mergers or other large combinations that simply add size, with a common, empowering culture. Second, we continue our intense focus on delivering quality and value to our clients through the collaboration of our unusually wide range of top tier signature practices, the unmatched breadth and depth of our U.S. platform and our disciplined global reach."
This week Greenberg Traurig also announced the elevation of 29 of its lawyers to shareholder status. Reflecting the firm's diversified platform and wide-ranging legal experience, the 2012 class represents over 20 different office locations and a range of its key areas of practice, including bankruptcy, corporate and securities, intellectual property, labor and employment, litigation, real estate and tax.
''Our future is in the hands of our new and developing shareholders, and we are very proud of their sustained commitment to addressing client needs,'' said Rosenbaum. "We are extremely focused on their integration and adding further value to our clients by the continued development not only of their legal skills but also their skills in the business of practicing law."
Additionally, Greenberg Traurig had a number of high-profile hires in 2011. The firm ranks fourth nationwide on The American Lawyer 2012 Lateral Report "Top Gaining Firms: Lateral Partner Hires" list, with 46 lateral shareholders joining the firm in 2011. The firm also achieved the most overall first-tier rankings, most first-tier metropolitan rankings and most practice areas with first-tier rankings for the United States in the U.S. News Media Group and Best Lawyers® ''Best Law Firms'' rankings, 2011-2012.
In 2011, the firm opened an office in Mexico City, and announced the opening of an office in Tel Aviv in early 2012. Greenberg Traurig, LLP serves clients from 33 offices in the United States, Latin America, Europe and Asia. In the U.S., the firm's 29 offices represent more locations than any other firm among the Top 10 on The National Law Journal's 2011 NLJ 250.
Greenberg Traurig Expands its Patent Litigation Practice with the Addition of Intellectual Property Trial Lawyer Richard C. Pettus in New York | Business Wire
Sun, 12 Apr 2015 06:57
NEW YORK--(BUSINESS WIRE)--The international law firm Greenberg Traurig, LLP announced that Richard C. Pettus has joined its New York City office as a shareholder in the Intellectual Property & Technology Practice. Prior to joining Greenberg Traurig, Pettus was a partner at King & Spalding and served as deputy practice leader of its Intellectual Property Practice as well as co-head of the Pharmaceutical, Biotechnology and Medical Device Initiative.
Rich is an experienced trial lawyer who focuses on patent matters, particularly in the pharmaceutical and Hatch Waxman area. Over the last 15 years, he has represented clients in more than 50 patent cases, including more than a half dozen trials to verdict. His experience spans an array of technologies and industries including pharmaceuticals, medical devices, computer hardware and software, business methods, semiconductors, polymers, ''green'' technology, energy and industrial equipment, fiber optics and chemical processes and consumer products.
''I have known Rich for almost 20 years. His reputation is based not only on his strong experience but also on his commitment to client service. He is a terrific addition to the team,'' said Scott Bornstein, co-chair of the firm's Patent Litigation group and chair of New York's Intellectual Property Practice.
Pettus has served as lead counsel in a number of patent trials and other matters in the areas of bio-pharmaceutical and ANDA Hatch-Waxman litigation, including Hatch-Waxman pre-litigation assessments to prepare branded pharmaceutical clients for challenges to their patent portfolios.
''Richard's extensive patent litigation experience expands the level of service we can bring clients,'' said Ed Wallace, co-managing shareholder of Greenberg Traurig's New York City office.
Warren Karp, co-managing shareholder of Greenberg Traurig's New York City office, added ''we're thrilled to have Rich with us and welcome him to the Greenberg Traurig family.''
Pettus received his J.D. from Fordham University School of Law and his engineering degree from Manhattan College.
With more than 200 intellectual property attorneys and agents, Greenberg Traurig provides full-service patent, trademark and copyright protection and strategic counseling. The firm's Intellectual Property & Technology Practice has been ranked by IPLaw 360 and IP Law & Business as the most frequently hired trademark and patent practices for prosecution and litigation. In addition, the firm's trademarks and brand management team has been ranked among the top 5 firms by CSC Trademark Insider for the number of USPTO trademark applications submitted.
Pettus is the most recent hire in the trend of strategic expansion throughout Greenberg Traurig's Intellectual Property and Technology Practice. Others include San Francisco shareholders Vernon Winters, Nicholas Brown and Evan Nadel; Washington, D.C. shareholder Charanjit Brahma; and Boston shareholder Jennifer Camacho.
About Greenberg Traurig, LLP
Greenberg Traurig, LLP is an international, full-service law firm with approximately 1,800 attorneys serving clients from more than 30 offices in the United States, Europe and Asia. In the U.S., the firm has more offices than any other among the Top 10 on The National Law Journal's 2011 NLJ 250. In the U.K., the firm operates as Greenberg Traurig Maher LLP. Greenberg Traurig has a strategic alliance with the independent law firm, Studio Santa Maria in Milan and Rome. The firm was Chambers and Partners' USA Law Firm of the Year in 2007 and among the Top 3 in the International Law Firm of the Year at the 2009 The Lawyer Awards. For additional information, please visit www.gtlaw.com.
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Vocal Fry
Annie email-singer
Hi Adam (and John),
Funny you should mention vocal fry. I've been trained as a singer from a young age (mostly opera, jazz, broadway stylings) and vocal fry is a huge issue as far as singing goes. When someone does vocal fry, they actually don't run any air past their vocal chords. The vocal chords rub together much like when a singer goes too high too often, causing strain.
Vocal fry is damaging to the vocal chords and can result in nodes which can only be removed surgically. Hence why I cringe every time I hear Meghan Trainor's "All About That Bass". At this rate, she'll have no voice by 35 (Julie Andrews had nodes and was unable to sing for years).
This is why I actually explain vocal fry to girls who do it (and guys). It could save them from either having no voice or getting a rather expensive surgery. Please tell everyone you know who does this to STOP!
-Annie
Über Sources
Haiti
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Oil all the way to Jamaica
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Certification Related to the Government of Haiti Under Section 7045(E)(1) of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2015
Sun, 12 Apr 2015 03:29
Pursuant to the authority vested in the Secretary of State, including under section 7045(e)(1) of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2015 (Div. J, Pub. L. 113-235), I hereby certify that Haiti is taking steps to hold free and fair parliamentary elections and to seat a new Haitian Parliament; is selecting judges in a transparent manner and respecting the independence of the judiciary; is combating corruption, including implementing the anti-corruption law by prosecuting corrupt officials; and is improving governance and implementing financial transparency and accountability requirements for government institutions.
This Certification shall be published in the Federal Register, and copies shall be transmitted to the appropriate committees of Congress.
Dated: April 1, 2015.
John F. Kerry,
Secretary of State.
[FR Doc. 2015-08468 Filed 4-10-15; 8:45 am]
BILLING CODE 4710-10-P
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Definition and Management of Hypertension Among Haitian Immigrants: A Qualitative Study
Other reported alternative, culturally based approaches included 5 kob wouj (a red five-cent piece) (n=1), baby aspirin (n=3), fey zanmann (n=11), papaya and papaya leaves (n=2), oil of lwil maskreti (Castor oil) (n=2), fey metsyen (n=12), lay (garlic) (n=12), fey lougawou (n=4), and simen kontra (n=22). These herbal remedies were either imported from Haiti or came directly from the participants’ backyards where participants had planted them for easy access. As one participant stated:
Oh. I can take metsyen [leaf], zanmann [leaf], lougawou [leaf]. I have my garden outside. Whenever I need I just go outside, I take and boil them. When I am done drinking these leaves, I pee a lot. It lowers my blood pressure. Papaya leaf, it lowers the blood pressure more than the pill. You can get addicted to the pill. You keep taking the pill the doctor gave you, but it is not good for your intestine. (P2)
This participant reiterated that she believed culturally based herbal medicines were effective in lowering blood pressure. She discussed her preference for alternative approaches for hypertension management. She expressed that this preference was because of the potential addictive effects of prescribed medications. The5-kob wouj (a red five-cent piece) was placed in the middle of the head along with the lwil maskreti, an oil. This was believed to lower blood pressure. Baby aspirin was believed to enhance blood circulation. Fey zanmann was used as a tea and also applied straight to the forehead with the oil of maskreti. Fey metsyen, fey lougarou, and simen kontra were also prepared as a tea. Papaya was blended and drunk as a juice. Papaya leaf was smeared with lwil maskreti and placed on the forehead to lower blood pressure. Garlic bulb was used to make tea and was also boiled along with other leaves and placed in the refrigerator to be consumed throughout the day for water intake.
Zanmann '' Tropical Almond | Mangeons LAKAY
Sun, 12 Apr 2015 04:13
I remember spending endless hours sitting in the backyard, after collecting several ZANMANNs (Tropical Almonds) that I would shamelessly enjoy, from the tree that my father had planted there.The tree's latin name is actually Terminalia catappa whose origin is of India. No matter how hard I would try to describe the fruit to some of my friends over here, they would not know what I would refer to.
See, ZANMANN (The fruit) is creole for Amande which some people think means ALMOND.But the ALMOND and the Terminalia catappa's fruit are two different things to my taste buds. They probably come from the same family however. I'm not too sure.
I used to not just enjoy the fruit (which you could eat with its bear skin btw) ,but I would also be armed with a hammer. YES! A HAMMER! I know I used to be between the ages of 10 and 15 when I would sit in the backyard using my father's hammer but this was never considered a hazard back home lol . ''What's the hammer for?'' you might ask.Well, what else than to crack open the fruit so I could reach the nut that would lay inside of it as a desired treasure! It would take an eternity to do so but these endless minutes were totally worth it !
Terminalia catappa medicinal uses:
The leaves have many medicinal uses including diaphoretic, anti-indigestion, and anti-dysentery activities. An infusion of the young leaves or scraped bark are occasionally taken as a potion for treating mouth infections.
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Pras - Wikipedia, the free encyclopedia
Sun, 12 Apr 2015 04:10
This article is about Pras, the musical artist. For the computer science concept "polynomial-time randomized approximation scheme" or PRAS, see polynomial-time approximation scheme.PrasBirth namePraskazrel Samuel MichelBorn(1972-10-19) October 19, 1972 (age 42)Brooklyn, New York, United StatesGenresHip hop, soul, reggae,Occupation(s)Rapper, multi-instrumentalist, singer, songwriter, record producer, arrangerInstrumentskeyboards, samplerYears active1992''presentLabelsColumbia, Ruffhouse, Guerrilla EntertainmentAssociated actsFugees, Refugee Camp All-StarsPras (//; born Praskazrel Samuel Michel on October 19, 1972) is a two-time Grammy-winning American rapper, best known as one of the founding members of the critically acclaimed hip hop group, the Fugees, which included his cousin Wyclef Jean and recording artist Lauryn Hill.
Biography[edit]Early life[edit]Born in Brooklyn, New York and raised in Irvington, New Jersey, Pras cultivated an early interest in music. When he was 15, Pras met Lauryn Hill, while both attended Columbia High School, South Orange, New Jersey. In 1988, Pras introduced Lauryn to Wyclef Jean. Pras Michel, Wyclef Jean and Lauryn Hill began to rehearse under the guidance of Kool and the Gang's producer, Ronald Khalis Bell, and subsequently they formed a musical group called The Rap Translators in 1989 (also known as Tranzlator Crew.)
Music career[edit]In 1994, before and during the time that The Fugees were recording their first album Blunted on Reality, under the supervision of Ronald Khalis Bell, Pras attended Rutgers College and Yale University, pursuing a double major in Philosophy and Psychology.[1] In 1996, The Fugees achieved historic crossover success with The Score, which went multi-platinum. Pras has also forged a successful solo career, beginning with an international hit single from his first full-length solo LP, "Ghetto Supastar (That Is What You Are)", featuring M½a and Ol' Dirty Bastard. "Ghetto Superstar" became a top ten single in 1999, and the eighth most played single; it was received with critical acclaim and earned Pras a performance at the World Music Awards. The hit single was included in the soundtrack for the film Bulworth. "Ghetto Supastar" spent eight weeks in the UK Top 5, peaking at No. 2 in July 1998,[2] and reached US No. 15 a month later. "Blue Angels", from the same album, was a UK Top 10 hit, reaching No. 6 in November.[2] Pras also featured on the track "Turn You On" by Swedish artist DeDe[3] which was released in 2007. "Turn You On" was also written and produced by Pras Michel. After nine weeks on Sweden's single chart, it peaked at No. 2. He also featured "Pushin'" from the album Equalize by Swami, which was released in 2007.
Film career[edit]After his cameo debut in the 1999 film, Mystery Men, Pras gained an interest in Hollywood. In 2000, Pras starred in the New Line film, Turn It Up. In early 2002, he appeared in the Sony and Urban World release Higher Ed, and Go for Broke in which he starred and produced. He also co-starred in three 20th Century Fox films in 2007. These included The Mutant Chronicles.
In 2006, Pras created Skid Row, Los Angeles, a documentary account of his nine-day experience posing as a homeless person living in downtown Los Angeles. Using a hidden camera, Pras captured the reality of homelessness. The film was produced by Teryn Fogel.[4]Skid Row was released on August 24, 2007 to widespread critical acclaim.[5]
In 2009, Pras travelled to Somalia to film a documentary entitled Paper Dreams to highlight piracy off the African coast. During filming pirates invaded the ship he was on, the MV Maersk Alabama and took the Captain of the ship hostage. Due to be released in 2014, the documentary remains unfinished due to a legal dispute.[6]
In 2010, Pras created a documentary entitled Sweet Mickey For Prezidan. The documentary chronicled the rise of Haitian musician Michel Martelly, through his election to fight corruption as President of Haiti, an election campaign that was strongly endorsed by Pras.[7]
Discography[edit]Albums[edit]Singles[edit]As lead artist[edit]As featured artist[edit]Acting and producing career[edit]Mystery Men (1999) '' Tony C (credited as Prakazrel Michel)Turn It Up (2000) - Denzel/Diamond (credited as Pras Michel) (co-producer)Higher Ed (2001) - Ed Green (credited as Pras Michel) (executive producer)Go For Broke (2002) - Jackson/Jackie (credited as Pras Michel) (producer)Nora's Hair Salon (2004)Careful What You Wish For (2004) '' Zen Salesman (credited as Pras Michel)Feel The Noise (2007) '' ElectricFirst Night (2007) '' himself (producer)Skid Row (2007) '' himself (producer)The Mutant Chronicles (2007) - Captain Michaels (producer)Paper Dreams (2010) - himself (producer)Sweet Mickey for Prezidan (2012) - himself (producer)References[edit]Sources[edit]^Rahul (May 17, 2012). "Pras Talks 2Pac, Suge Knight, Wyclef, Lauryn Hill & Beef on the Champs Podcast". Dajaz1.com. Retrieved May 19, 2012. ^ abRoberts, David (2006). British Hit Singles & Albums (19th ed.). London: Guinness World Records Limited. p. 362. ISBN 1-904994-10-5. ^http://www.dede.se^"IMDB "Skid Row"". IMDB. Retrieved 2010-12-04. ^"Skid Row 83% Rotten Tomatoes". Retrieved 2013-06-13. ^"TMZ Pras Michel Lawsuit". Retrieved 2013-06-13. ^"IMDB "Sweet Mickey for Prezidan"". Retrieved 2013-06-13. ^"Pras Album & Song Chart History: Billboard 200". Billboard. ^"Pras Album & Song Chart History: R&B/Hip-Hop Albums". Billboard. ^ abcHung, Steffen. "Discographie Pras Michel". German Charts Portal. Hung Medien (Steffen Hung). ^ abcHung, Steffen. "Discography Pras Michel". Norwegian Charts Portal. Hung Medien (Steffen Hung). ^ abcHung, Steffen. "Discography Pras Michel". New Zealand Charts Portal. Hung Medien (Steffen Hung). ^ abcHung, Steffen. "Discography Pras Michel". Swedish Charts Portal. Hung Medien (Steffen Hung). ^ abcHung, Steffen. "Discographie Pras Michel". Swiss Charts Portal. Hung Medien (Steffen Hung). ^"Pras Michel > UK charts". Official Charts Company. ^ abHung, Steffen. "Discography Pras Michel". Australian Charts Portal. Hung Medien (Steffen Hung). ^ abHung, Steffen. "Discographie Pras Michel". Austrian Charts Portal. Hung Medien (Steffen Hung). ^ abHung, Steffen. "Discografie Pras Michel". Belgium (Flanders) Charts Portal. Hung Medien (Steffen Hung). ^ abHung, Steffen. "Discography Pras Michel". Finnish Charts Portal. Hung Medien (Steffen Hung). ^ ab"Pras Michel > UK Charts". Official Charts Company. External links[edit]PersondataNamePrasAlternative namesShort descriptionAmerican rapperDate of birth1972-10-19Place of birthBrooklyn, New York, United StatesDate of deathPlace of death
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Sulfur - Wikipedia, the free encyclopedia
Sun, 12 Apr 2015 00:46
Sulfur, 16SSpectral lines of sulfur
General propertiesName, symbolsulfur, SPronunciation//SUL-fÉrAppearancelemon yellow sintered microcrystalsSulfur in the periodic tableAtomic number16Standard atomic weight32.06[1] (32.059''32.076)[2]Element category polyatomic nonmetalGroup, blockgroup 16 (chalcogens), p-blockPeriodperiod 3Electron configuration[Ne] 3s2 3p4per shell2, 8, 6Physical propertiesPhasesolidMelting point388.36 K '‹(115.21 °C, '‹239.38 °F)Boiling point717.8 K '‹(444.6 °C, '‹832.3 °F)Densitynear r.t.alpha: 2.07 g·cm''3beta: 1.96 g·cm''3gamma: 1.92 g·cm''3when liquid, at m.p.1.819 g·cm''3Critical point1314 K, 20.7 MPaHeat of fusionmono: 1.727 kJ·mol''1Heat of vaporizationmono: 45 kJ·mol''1Molar heat capacity22.75 J·mol''1·K''1vapor pressureP (Pa)1101001 k10 k100 kat T (K)375408449508591717Atomic propertiesOxidation states6, 5, 4, 3, 2, 1, ''1, ''2 '‹(a strongly acidic oxide)ElectronegativityPauling scale: 2.58Ionization energies1st: 999.6 kJ·mol''12nd: 2252 kJ·mol''13rd: 3357 kJ·mol''1(more)Covalent radius105±3 pmVan der Waals radius180 pmMiscellaneaCrystal structure'‹orthorhombicThermal conductivity0.205 W·m''1·K''1 (amorphous)Electrical resistivity2—1015 Î(C)·m (at 20 °C) (amorphous)Magnetic orderingdiamagnetic[3]Bulk modulus7.7 GPaMohs hardness2.0CAS Registry Number7704-34-9HistoryDiscoveryChinese[4](before 2000 BCE)Recognized as an element byAntoine Lavoisier (1777)Most stable isotopesMain article: Isotopes of sulfur· referencesSulfur or sulphur (see spelling differences) is a chemical element with symbol S and atomic number 16. It is an abundant, multivalentnon-metal. Under normal conditions, sulfur atoms form cyclic octatomic molecules with chemical formula S8. Elemental sulfur is a bright yellow crystalline solid when at room temperature. Chemically, sulfur can react as either an oxidant or a reducing agent. It oxidizes most metals and several nonmetals, including carbon, which leads to its negative charge in most organosulfur compounds, but it reduces several strong oxidants, such as oxygen and fluorine.
Sulfur occurs naturally as the pure element (native sulfur) and as sulfide and sulfate minerals. Elemental sulfur crystals are commonly sought after by mineral collectors for their distinct, brightly colored polyhedron shapes. Being abundant in native form, sulfur was known in ancient times, mentioned for its uses in ancient India, ancient Greece, China and Egypt. Fumes from burning sulfur were used as fumigants, and sulfur-containing medicinal mixtures were used as balms and antiparasitics. Sulfur is referred to in the Bible as brimstone (burn stone) in English, with this name still used in several nonscientific tomes.[5] It was needed to make the best quality of black gunpowder. In 1777, Antoine Lavoisier helped convince the scientific community that sulfur was a basic element rather than a compound.
Elemental sulfur was once extracted from salt domes where it sometimes occurs in nearly pure form, but this method has been obsolete since the late 20th century. Today, almost all elemental sulfur is produced as a byproduct of removing sulfur-containing contaminants from natural gas and petroleum. The element's largest commercial use (after mostly being converted to sulfuric acid) is to produce sulfate and phosphate fertilizers, because of the relatively high requirement of plants for sulfur and phosphorus. Sulfuric acid is also a primary industrial chemical outside fertilizer manufacture. Other well-known uses for the element are in matches, insecticides and fungicides. Many sulfur compounds are odoriferous, and the smell of odorized natural gas, skunk scent, grapefruit, and garlic is due to sulfur compounds. Hydrogen sulfide produced by living organisms imparts the characteristic odor to rotting eggs and other biological processes.
Sulfur is an essential element for all life, and is widely used in biochemical processes. In metabolic reactions, sulfur compounds serve as both fuels (electron donors) and respiratory (oxygen-alternative) materials (electron acceptors). Sulfur in organic form is present in the vitamins biotin and thiamine, the latter being named for the Greek word for sulfur. Sulfur is an important part of many enzymes and in antioxidant molecules like glutathione and thioredoxin. Organically bonded sulfur is a component of all proteins, as the amino acidscysteine and methionine. Disulfide bonds are largely responsible for the mechanical strength and insolubility of the protein keratin, found in outer skin, hair, and feathers, and the element contributes to their pungent odor when burned.
Spelling and etymologyEditSulfur is historically a Latin word. The original Latin spelling was sulpur, but this was Hellenized to sulphur; the form sulfur appears toward the end of the Classical period. (The true Greek word for sulfur, θεá–Îν, is the source of the international chemical prefix thio-.) In 12th-century Anglo-French, it was sulfre; in the 14th century the Latin ph was restored, for sulphre; and by the 15th century the full Latin spelling was restored, for sulfur, sulphur. The parallel f~ph spellings continued in Britain until the 19th century, when the word was standardized as sulphur.[6]Sulfur was the form chosen in the United States, whereas Canada uses both. However, the IUPAC adopted the spelling sulfur in 1990, as did the Nomenclature Committee of the Royal Society of Chemistry in 1992, restoring the spelling sulfur to Britain.[7] The Oxford Dictionaries note that "in chemistry ... the -f- spelling is now the standard form in all related words in the field in both British and US contexts."[8]
The late Latin form also continues in the Romance languages: French soufre, Italian zolfo (from solfo), Spanish azufre (from a§ufre, from earlier §ufre), Portuguese enxofre (from xofre). The Spanish and Portuguese forms are prefixed with the Arabic article, despite not being Arabic words.[6] The root has been traced back to reconstructed proto-Indo-European*sw(C)plÌ¥ (genitive *sulpl"s), a nominal derivative of *swelp 'to burn', a lineage also preserved in the Germanic languages, where it is found for example as modern German Schwefel, Dutch zwavel, and Swedish svavel, and as Old Englishswefl.[9]
CharacteristicsEditPhysical propertiesEditSulfur forms polyatomic molecules with different chemical formulas, with the best-known allotrope being octasulfur, cyclo-S8. The point group of cyclo-S8 is D4d and its dipole moment is 0 D.[10] Octasulfur is a soft, bright-yellow solid with only a faint odor, similar to that of matches.[11] It melts at 115.21 °C (239.38 °F), boils at 444.6 °C (832.3 °F) and sublimes easily.[5] At 95.2 °C (203.4 °F), below its melting temperature, cyclo-octasulfur changes from α-octasulfur to the β-polymorph.[12] The structure of the S8 ring is virtually unchanged by this phase change, which affects the intermolecular interactions. Between its melting and boiling temperatures, octasulfur changes its allotrope again, turning from β-octasulfur to Î"-sulfur, again accompanied by a lower density but increased viscosity due to the formation of polymers.[12] At even higher temperatures, however, the viscosity decreases as depolymerization occurs. Molten sulfur assumes a dark red color above 200 °C (392 °F). The density of sulfur is about 2 g·cm''3, depending on the allotrope; all of its stable allotropes are excellent electrical insulators.
Chemical propertiesEditSulfur burns with a blue flame concomitant with formation of sulfur dioxide, notable for its peculiar suffocating odor. Sulfur is insoluble in water but soluble in carbon disulfide and, to a lesser extent, in other nonpolar organic solvents, such as benzene and toluene. The first and the second ionization energies of sulfur are 999.6 and 2252 kJ·mol''1, respectively. Despite such figures, the +2 oxidation state is rare, with +4 and +6 being more common. The fourth and sixth ionization energies are 4556 and 8495.8 kJ·mol''1, the magnitude of the figures caused by electron transfer between orbitals; these states are only stable with strong oxidants as fluorine, oxygen, and chlorine.
AllotropesEditSulfur forms over 30 solid allotropes, more than any other element.[13] Besides S8, several other rings are known.[14] Removing one atom from the crown gives S7, which is more deeply yellow than S8. HPLC analysis of "elemental sulfur" reveals an equilibrium mixture of mainly S8, but with S7 and small amounts of S6.[15] Larger rings have been prepared, including S12 and S18.[16][17]
Amorphous or "plastic" sulfur is produced by rapid cooling of molten sulfur'--for example, by pouring it into cold water. X-ray crystallography studies show that the amorphous form may have a helical structure with eight atoms per turn. The long coiled polymeric molecules make the brownish substance elastic, and in bulk this form has the feel of crude rubber. This form is metastable at room temperature and gradually reverts to crystalline molecular allotrope, which is no longer elastic. This process happens within a matter of hours to days, but can be rapidly catalyzed.
IsotopesEditSulfur has 25 known isotopes, four of which are stable: 32S (95.02%), 33S (0.75%), 34S (4.21%), and 36S (0.02%). Other than 35S, with a half-life of 87 days and formed in cosmic ray spallation of 40Ar, the radioactive isotopes of sulfur have half-lives less than 3 hours.
When sulfide minerals are precipitated, isotopic equilibration among solids and liquid may cause small differences in the δS-34 values of co-genetic minerals. The differences between minerals can be used to estimate the temperature of equilibration. The δC-13 and δS-34 of coexisting carbonate minerals and sulfides can be used to determine the pH and oxygen fugacity of the ore-bearing fluid during ore formation.
In most forest ecosystems, sulfate is derived mostly from the atmosphere; weathering of ore minerals and evaporites contribute some sulfur. Sulfur with a distinctive isotopic composition has been used to identify pollution sources, and enriched sulfur has been added as a tracer in hydrologic studies. Differences in the natural abundances can be used in systems where there is sufficient variation in the 34S of ecosystem components. Rocky Mountain lakes thought to be dominated by atmospheric sources of sulfate have been found to have different δ34S values from lakes believed to be dominated by watershed sources of sulfate.
Natural occurrenceEdit32S is created inside massive stars, at a depth where the temperature exceeds 2.5—109 K, by the fusion of one nucleus of silicon plus one nucleus of helium.[18] As this is part of the alpha process that produces elements in abundance, sulfur is the 10th most common element in the universe.
Sulfur, usually as sulfide, is present in many types of meteorites. Ordinary chondrites contain on average 2.1% sulfur, and carbonaceous chondrites may contain as much as 6.6%. It is normally present as troilite (FeS), but there are exceptions, with carbonaceous chondrites containing free sulfur, sulfates and other sulfur compounds.[19] The distinctive colors of Jupiter's volcanic moon Io are attributed to various forms of molten, solid and gaseous sulfur.[20]
On Earth, elemental sulfur can be found near hot springs and volcanic regions in many parts of the world, especially along the Pacific Ring of Fire; such volcanic deposits are currently mined in Indonesia, Chile, and Japan. Such deposits are polycrystalline, with the largest documented single crystal measuring 22—16—11 cm.[21] Historically, Sicily was a large source of sulfur in the Industrial Revolution.[22]
Native sulfur is synthesised by anaerobic bacteria acting on sulfate minerals such as gypsum in salt domes.[23][24] Significant deposits in salt domes occur along the coast of the Gulf of Mexico, and in evaporites in eastern Europe and western Asia. Native sulfur may be produced by geological processes alone. Fossil-based sulfur deposits from salt domes have until recently been the basis for commercial production in the United States, Russia, Turkmenistan, and Ukraine.[25] Currently, commercial production is still carried out in the Osiek mine in Poland. Such sources are now of secondary commercial importance, and most are no longer worked.
Common naturally occurring sulfur compounds include the sulfide minerals, such as pyrite (iron sulfide), cinnabar (mercury sulfide), galena (lead sulfide), sphalerite (zinc sulfide) and stibnite (antimony sulfide); and the sulfates, such as gypsum (calcium sulfate), alunite (potassium aluminium sulfate), and barite (barium sulfate). On Earth, just as upon Jupiter's moon Io, elemental sulfur occurs naturally in volcanic emissions, including emissions from hydrothermal vents.
ProductionEditSulfur may be found by itself and historically was usually obtained in this way, while pyrite has been a source of sulfur via sulfuric acid.[disputed'' discuss][26] In volcanic regions in Sicily, in ancient times, it was found on the surface of the Earth, and the "Sicilian process" was used: sulfur deposits were piled and stacked in brick kilns built on sloping hillsides, with airspaces between them. Then, some sulfur was pulverized, spread over the stacked ore and ignited, causing the free sulfur to melt down the hills. Eventually the surface-borne deposits played out, and miners excavated veins that ultimately dotted the Sicilian landscape with labyrinthine mines. Mining was unmechanized and labor-intensive, with pickmen freeing the ore from the rock, and mine-boys or carusi carrying baskets of ore to the surface, often through a mile or more of tunnels. Once the ore was at the surface, it was reduced and extracted in smelting ovens. The conditions in Sicilian sulfur mines were horrific, prompting Booker T. Washington to write "I am not prepared just now to say to what extent I believe in a physical hell in the next world, but a sulphur mine in Sicily is about the nearest thing to hell that I expect to see in this life.".[27]
Today's sulfur production is as a side product of other industrial processes such as oil refining; in these processes, sulfur often occurs as undesired or detrimental compounds that are extracted and converted to elemental sulfur. As a mineral, native sulfur under salt domes is thought to be a fossil mineral resource, produced by the action of ancient bacteria on sulfate deposits. It was removed from such salt-dome mines mainly by the Frasch process.[25] In this method, superheated water was pumped into a native sulfur deposit to melt the sulfur, and then compressed air returned the 99.5% pure melted product to the surface. Throughout the 20th century this procedure produced elemental sulfur that required no further purification. However, due to a limited number of such sulfur deposits and the high cost of working them, this process for mining sulfur has not been employed in a major way anywhere in the world since 2002.[28][29]
Today, sulfur is produced from petroleum, natural gas, and related fossil resources, from which it is obtained mainly as hydrogen sulfide. Organosulfur compounds, undesirable impurities in petroleum, may be upgraded by subjecting them to hydrodesulfurization, which cleaves the C''S bonds:[28][29]
R-S-R + 2 H2 '†' 2 RH + H2SThe resulting hydrogen sulfide from this process, and also as it occurs in natural gas, is converted into elemental sulfur by the Claus process. This process entails oxidation of some hydrogen sulfide to sulfur dioxide and then the comproportionation of the two:[28][29]
3 O2 + 2 H2S '†' 2 SO2 + 2 H2OSO2 + 2 H2S '†' 3 S + 2 H2OOwing to the high sulfur content of the Athabasca Oil Sands, stockpiles of elemental sulfur from this process now exist throughout Alberta, Canada.[30] Another way of storing sulfur is as a binder for concrete, the resulting product having many desirable properties (see sulfur concrete).[31] Sulfur is still mined from surface deposits in poorer nations with volcanos, such as Indonesia, and worker conditions have not improved much since Booker T. Washington's days.[32]
The world production of sulfur in 2011 amounted to 69 million tonnes (Mt), with more than 15 countries contributing more than 1 Mt each. Countries producing more than 5 Mt are China (9.6), US (8.8), Canada (7.1) and Russia (7.1).[33] While the production has been slowly increasing from 1900 to 2010, the price was much less stable, especially in the 1980s and around 2010.[34]
CompoundsEditCommon oxidation states of sulfur range from ''2 to +6. Sulfur forms stable compounds with all elements except the noble gases.
Sulfur polycationsEditSulfur polycations, S82+, S42+ and S192+ are produced when sulfur is reacted with mild oxidising agents in a strongly acidic solution.[35] The colored solutions produced by dissolving sulfur in oleum were first reported as early as 1804 by C.F Bucholz, but the cause of the color and the structure of the polycations involved was only determined in the late 1960s. S82+ is deep blue, S42+ is yellow and S192+ is red.[12]
SulfidesEditTreatment of sulfur with hydrogen gives hydrogen sulfide. When dissolved in water, hydrogen sulfide is mildly acidic:[5]
H2S HS'' + H+Hydrogen sulfide gas and the hydrosulfide anion are extremely toxic to mammals, due to their inhibition of the oxygen-carrying capacity of hemoglobin and certain cytochromes in a manner analogous to cyanide and azide (see below, under precautions).
Reduction of elemental sulfur gives polysulfides, which consist of chains of sulfur atoms terminated with S'' centers:
2 Na + S8 '†' Na2S8This reaction highlights arguably the single most distinctive property of sulfur: its ability to catenate (bind to itself by formation of chains). Protonation of these polysulfide anions gives the polysulfanes, H2Sx where x = 2, 3, and 4.[36] Ultimately reduction of sulfur gives sulfide salts:
16 Na + S8 '†' 8 Na2SThe interconversion of these species is exploited in the sodium-sulfur battery. The radical anion S3'' gives the blue color of the mineral lapis lazuli.
Oxides, oxoacids and oxoanionsEditThe principal sulfur oxides are obtained by burning sulfur:
S + O2 '†' SO22 SO2 + O2 '†' 2 SO3Other oxides are known, sulfur rich oxides e.g. sulfur monoxide and disulfur mono- and dioxides and higher oxides containing peroxo groups.
Sulfur forms a number of sulfur oxoacids, some of which cannot be isolated and are only known through their salts. Sulfur dioxide and sulfites (SO2''3) are related to the unstable sulfurous acid (H2SO3). Sulfur trioxide and sulfates (SO2''4) are related to sulfuric acid. Sulfuric acid and SO3 combine to give oleum, a solution of pyrosulfuric acid (H2S2O7) in sulfuric acid.
Thiosulfate salts (S2O2''3), sometimes referred as "hyposulfites", used in photographic fixing (HYPO) and as reducing agents, feature sulfur in two oxidation states. Sodium dithionite (Na2S2O4), contains the more highly reducing dithionite anion (S2O2''4).
Halides and oxyhalidesEditThe two main sulfur fluorides are sulfur hexafluoride, a dense gas used as nonreactive and nontoxic propellant, and sulfur tetrafluoride, a rarely used organic reagent that is highly toxic.[37]Sulfur dichloride and disulfur dichloride are important industrial chemicals. Sulfuryl chloride and chlorosulfuric acid are derivatives of sulfuric acid; thionyl chloride (SOCl2) is a common reagent in organic synthesis.[38]
PnictidesEditAn important S''N compound is the cage tetrasulfur tetranitride (S4N4). Heating this compound gives polymeric sulfur nitride ((SN)x), which has metallic properties even though it does not contain any metal atoms. Thiocyanates contain the SCN'' group. Oxidation of thiocyanate gives thiocyanogen, (SCN)2 with the connectivity NCS-SCN. Phosphorus sulfides are numerous, the most important commercially being the cages P4S10 and P4S3.[39][40]
Metal sulfidesEditThe principal ores of copper, zinc, nickel, cobalt, molybdenum, and other metals are sulfides. These materials tend to be dark-colored semiconductors that are not readily attacked by water or even many acids. They are formed, both geochemically and in the laboratory, by the reaction of hydrogen sulfide with metal salts. The mineral galena (PbS) was the first demonstrated semiconductor and found a use as a signal rectifier in the cat's whiskers of early crystal radios. The iron sulfide called pyrite, the so-called "fool's gold," has the formula FeS2.[41] The upgrading of these ores, usually by roasting, is costly and environmentally hazardous. Sulfur corrodes many metals via the process called tarnishing.
Organic compoundsEditSome of the main classes of sulfur-containing organic compounds include the following:[42]
Compounds with carbon''sulfur bonds are uncommon with the notable exception of carbon disulfide, a volatile colorless liquid that is structurally similar to carbon dioxide. It is used as a reagent to make the polymer rayon and many organosulfur compounds. Unlike carbon monoxide, carbon monosulfide is only stable as a dilute gas, as in the interstellar medium.[43]
Organosulfur compounds are responsible for some of the unpleasant odors of decaying organic matter. They are used in the odoration of natural gas and cause the odor of garlic and skunk spray. Not all organic sulfur compounds smell unpleasant at all concentrations: the sulfur-containing monoterpenoidgrapefruit mercaptan in small concentrations is responsible for the characteristic scent of grapefruit, but has a generic thiol odor at larger concentrations. Sulfur mustard, a potent vesicant, was used in World War I as a disabling agent.[44]
Sulfur-sulfur bonds are a structural component to stiffen rubber, in a way similar to the biological role of disulfide bridges to rigidify proteins (see biological below). In the most common type of industrial "curing" or hardening and strengthening of natural rubber, elemental sulfur is heated with the rubber to the point that chemical reactions form disulfide bridges between isoprene units of the polymer. This process, patented in 1843, allowed rubber to become a major industrial product, especially automobile tires. Because of the heat and sulfur, the process was named vulcanization, after the Roman god of the forge and volcanism.
AntiquityEditBeing abundantly available in native form, sulfur (Latinsulphur) was known in ancient times and is referred to in the Torah (Genesis). English translations of the Bible commonly referred to burning sulfur as "brimstone", giving rise to the term "fire-and-brimstone" sermons, in which listeners are reminded of the fate of eternal damnation that await the unbelieving and unrepentant. It is from this part of the Bible that Hell is implied to "smell of sulfur" (likely due to its association with volcanic activity). According to the Ebers Papyrus, a sulfur ointment was used in ancient Egypt to treat granular eyelids. Sulfur was used for fumigation in preclassical Greece;[45] this is mentioned in the Odyssey.[46]Pliny the Elder discusses sulfur in book 35 of his Natural History, saying that its best-known source is the island of Melos. He mentions its use for fumigation, medicine, and bleaching cloth.[47]
A natural form of sulfur known as shiliuhuang was known in China since the 6th century BC and found in Hanzhong.[48] By the 3rd century, the Chinese discovered that sulfur could be extracted from pyrite.[48] Chinese Daoists were interested in sulfur's flammability and its reactivity with certain metals, yet its earliest practical uses were found in traditional Chinese medicine.[48] A Song Dynasty military treatise of 1044 AD described different formulas for Chinese black powder, which is a mixture of potassium nitrate (KNO3), charcoal, and sulfur.
Indian alchemists, practitioners of "the science of mercury" (sanskrit rasaśāstra, रसशास्त्र), wrote extensively about the use of sulfur in alchemical operations with mercury, from the eighth century AD onwards.[49] In the rasaśāstra tradition, sulfur is called "the smelly" (sanskrit gandhaka, गन्धक).
Early Europeanalchemists gave sulfur its own alchemical symbol, a triangle at the top of a cross. In traditional skin treatment before the modern era of scientific medicine, elemental sulfur was used, mainly in creams, to alleviate conditions such as scabies, ringworm, psoriasis, eczema, and acne. The mechanism of action is unknown'--though elemental sulfur does oxidize slowly to sulfurous acid, which in turn (through the action of sulfite) acts as a mild reducing and antibacterial agent.[50][51][52]
Modern timesEditIn 1777, Antoine Lavoisier helped convince the scientific community that sulfur was an element, not a compound. Sulfur deposits in Sicily were the dominant supply source for over half a century. Approximately 2000 tons per year of sulfur were imported into Marseilles, France for the production of sulfuric acid via the Leblanc process by the late 18th century. In industrializing Britain, with the repeal of tariffs on salt in 1824, demand for sulfur from Sicily surged upward. The increasing British control and exploitation of the mining, refining and transportation of the sulfur, coupled with the failure of this lucrative export to transform Sicily's backward and impoverished economy led to the 'Sulfur Crisis' of 1840, when King Ferdinand II gave a monopoly of the sulfur industry to a French firm, violating an earlier 1816 trade agreement with Britain. A peaceful negotiated solution was eventually mediated by France.[53][54]
In 1867, sulfur was discovered in underground deposits in Louisiana and Texas. The highly successful Frasch process was developed to extract this resource.[55]
In the late 18th century, furniture makers used molten sulfur to produce decorative inlays in their craft. Because of the sulfur dioxide produced during the process of melting sulfur, the craft of sulfur inlays was soon abandoned. Molten sulfur is sometimes still used for setting steel bolts into drilled concrete holes where high shock resistance is desired for floor-mounted equipment attachment points. Pure powdered sulfur was used as a medicinal tonic and laxative.[25] With the advent of the contact process, the majority of sulfur today is used to make sulfuric acid for a wide range of uses, particularly fertilizer.[56]
ApplicationsEditSulfuric acidEditElemental sulfur is mainly used as a precursor to other chemicals. Approximately 85% (1989) is converted to sulfuric acid (H2SO4):
2 S + 3 O2 + 2 H2O '†' 2 H2SO4Because of its importance, sulfuric acid was considered an excellent indicator of a country's industrial well-being.[57] For example with 32.5 million tonnes in 2010, the United States produces more sulfuric acid every year than any other inorganic industrial chemical.[34] The principal use for the acid is the extraction of phosphate ores for the production of fertilizer manufacturing. Other applications of sulfuric acid include oil refining, wastewater processing, and mineral extraction.[25]
Other large-scale sulfur chemicalsEditSulfur reacts directly with methane to give carbon disulfide, which is used to manufacture cellophane and rayon.[25] One of the direct uses of sulfur is in vulcanization of rubber, where polysulfide chains crosslink organic polymers. Sulfites are heavily used to bleachpaper and as preservatives in dried fruit. Many surfactants and detergents, e.g. sodium lauryl sulfate, are produced are sulfate derivatives. Calcium sulfate, gypsum, (CaSO4·2H2O) is mined on the scale of 100 million tons each year for use in Portland cement and fertilizers.
When silver-based photography was widespread, sodium and ammonium thiosulfate were widely used as "fixing agents." Sulfur is a component of gunpowder.
FertilizerEditSulfur is increasingly used as a component of fertilizers. The most important form of sulfur for fertilizer is the mineral calcium sulfate. Elemental sulfur is hydrophobic (that is, it is not soluble in water) and, therefore, cannot be directly utilized by plants. Over time, soil bacteria can convert it to soluble derivatives, which can then be utilized by plants. Sulfur improves the use efficiency of other essential plant nutrients, particularly nitrogen and phosphorus.[58] Biologically produced sulfur particles are naturally hydrophilic due to a biopolymer coating. This sulfur is, therefore, easier to disperse over the land (via spraying as a diluted slurry), and results in a faster release.
Plant requirements for sulfur are equal to or exceed those for phosphorus. It is one of the major nutrients essential for plant growth, root nodule formation of legumes and plants protection mechanisms. Sulfur deficiency has become widespread in many countries in Europe.[59][60][61] Because atmospheric inputs of sulfur continue to decrease, the deficit in the sulfur input/output is likely to increase, unless sulfur fertilizers are used.
Fine chemicalsEditOrganosulfur compounds are used in pharmaceuticals, dyestuffs, and agrochemicals. Many drugs contain sulfur, early examples being antibacterial sulfonamides, known as sulfa drugs. Sulfur is a part of many bacterial defense molecules. Most β-lactam antibiotics, including the penicillins, cephalosporins and monolactams contain sulfur.[42]
Magnesium sulfate, known as Epsom salts when in hydrated crystal form, can be used as a laxative, a bath additive, an exfoliant, magnesium supplement for plants, or (when in dehydrated form) as a desiccant.
Fungicide and pesticideEditElemental sulfur is one of the oldest fungicides and pesticides. "Dusting sulfur," elemental sulfur in powdered form, is a common fungicide for grapes, strawberry, many vegetables and several other crops. It has a good efficacy against a wide range of powdery mildew diseases as well as black spot. In organic production, sulfur is the most important fungicide. It is the only fungicide used in organically farmed apple production against the main disease apple scab under colder conditions. Biosulfur (biologically produced elemental sulfur with hydrophilic characteristics) can be used well for these applications.
Standard-formulation dusting sulfur is applied to crops with a sulfur duster or from a dusting plane. Wettable sulfur is the commercial name for dusting sulfur formulated with additional ingredients to make it water miscible.[62][63] It has similar applications and is used as a fungicide against mildew and other mold-related problems with plants and soil.
Elemental sulfur powder is used as an "organic" (i.e. "green") insecticide (actually an acaricide) against ticks and mites. A common method of use is to dust clothing or limbs with sulfur powder.
Diluted solutions of lime sulfur (made by combinding calcium hydroxide with elemental sulfur in water), are used as a dip for pets to destroy ringworm (fungus), mange and other dermatoses and parasites. Sulfur candles consist of almost pure sulfur in blocks or pellets that are burned to fumigate structures. It is no longer used in the home due to the toxicity of the products of combustion.
Bactericide in winemaking and food preservationEditSmall amounts of sulfur dioxide gas addition (or equivalent potassium metabisulfite addition) to fermented wine to produce traces of sulfurous acid (produced when SO2 reacts with water) and its sulfite salts in the mixture, has been called "the most powerful tool in winemaking."[64] After the yeast-fermentation stage in winemaking, sulfites absorb oxygen and inhibit aerobic bacterial growth that otherwise would turn ethanol into acetic acid, souring the wine. Without this preservative step, indefinite refrigeration of the product before consumption is usually required. Similar methods go back into antiquity but modern historical mentions of the practice go to the fifteenth century. The practice is used by large industrial wine producers and small organic wine producers alike.
Sulfur dioxide and various sulfites have been used for their antioxidant antibacterial preservative properties in many other parts of the food industry also. The practice has declined since reports of an allergy-like reaction of some persons to sulfites in foods.
Pharmaceutical useEditSulfur is used in pharmaceutical skin preparations for the treatment of acne and other conditions. it acts as a keratolytic agent and also kills bacteria, fungi, scabies mites and other parasites.[65] Precipitated sulfur and colloidal sulfur are used, in form of lotions, creams, powders, soaps, and bath additives, for the treatment of acne vulgaris, acne rosacea, and seborrhoeic dermatitis.[66]
Biological roleEditProtein and organic cofactorsEditSulfur is an essential component of all living cells. It is the seventh or eighth most abundant element in the human body by weight, being about as common as potassium, and a little more common than sodium or chlorine. A 70 kg (150 lb) human body contains about 140 grams of sulfur.
In plants and animals, the amino acidscysteine and methionine contain most of the sulfur. The element is thus present in all polypeptides, proteins, and enzymes that contain these amino acids. In humans, methionine is an essential amino acid that must be ingested. However, save for the vitamins biotin and thiamine, cysteine and all sulfur-containing compounds in the human body can be synthesized from methionine. The enzyme sulfite oxidase is needed for the metabolism of methionine and cysteine in humans and animals.
Disulfide bonds (S-S bonds) formed between cysteine residues in peptide chains are very important in protein assembly and structure. These covalent bonds between peptide chains confer extra toughness and rigidity.[67] For example, the high strength of feathers and hair is in part due to their high content of S-S bonds and their high content of cysteine and sulfur. Eggs are high in sulfur because large amounts of the element are necessary for feather formation, and the characteristic odor of rotting eggs is due to hydrogen sulfide. The high disulfide bond content of hair and feathers contributes to their indigestibility and to their characteristic disagreeable odor when burned.
Homocysteine and taurine are other sulfur-containing acids that are similar in structure, but not coded by DNA, and are not part of the primary structure of proteins. Many important cellular enzymes use prosthetic groups ending with -SH moieties to handle reactions involving acyl-containing biochemicals: two common examples from basic metabolism are coenzyme A and alpha-lipoic acid.[67] Two of the 13 classical vitamins, biotin and thiamine contain sulfur, with the latter being named for its sulfur content. Sulfur plays an important part, as a carrier of reducing hydrogen and its electrons, for cellular repair of oxidation. Reduced glutathione, a sulfur-containing tripeptide, is a reducing agent through its sulfhydryl (-SH) moiety derived from cysteine. The thioredoxins, a class of small protein essential to all known life, using neighboring pairs of reduced cysteines to act as general protein reducing agents, to similar effect.
Methanogenesis, the route to most of the world's methane, is a multistep biochemical transformation of carbon dioxide. This conversion requires several organosulfur cofactors. These include coenzyme M, CH3SCH2CH2SO3'', the immediate precursor to methane.[68]
Metalloproteins and inorganic cofactorsEditInorganic sulfur forms a part of iron-sulfur clusters as well as many copper, nickel, and iron proteins. Most pervasive are the ferrodoxins, which serve as electron shuttles in cells. In bacteria, the important nitrogenase enzymes contains an Fe-Mo-S cluster, is a catalyst that performs the important function of nitrogen fixation, converting atmospheric nitrogen to ammonia that can be used by microorganisms and plants to make proteins, DNA, RNA, alkaloids, and the other organic nitrogen compounds necessary for life.[69]
Sulfur metabolism and the sulfur cycleEditThe sulfur cycle was the first of the biogeochemical cycles to be discovered. In the 1880s, while studying Beggiatoa (a bacterium living in a sulfur rich environment), Sergei Winogradsky found that it oxidized hydrogen sulfide (H2S) as an energy source, forming intracellular sulfur droplets. Winogradsky referred to this form of metabolism as inorgoxidation (oxidation of inorganic compounds). He continued to study it together with Selman Waksman until the 1950s.
Sulfur oxidizers can use as energy sources reduced sulfur compounds, including hydrogen sulfide, elemental sulfur, sulfite, thiosulfate, and various polythionates (e.g., tetrathionate).[70] They depend on enzymes such as sulfur oxygenase and sulfite oxidase to oxidize sulfur to sulfate. Some lithotrophs can even use the energy contained in sulfur compounds to produce sugars, a process known as chemosynthesis. Some bacteria and archaea use hydrogen sulfide in place of water as the electron donor in chemosynthesis, a process similar to photosynthesis that produces sugars and utilizes oxygen as the electron acceptor. The photosyntheticgreen sulfur bacteria and purple sulfur bacteria and some lithotrophs use elemental oxygen to carry out such oxidization of hydrogen sulfide to produce elemental sulfur (S0), oxidation state = 0. Primitive bacteria that live around deep ocean volcanic vents oxidize hydrogen sulfide in this way with oxygen; see giant tube worm for an example of large organisms that use hydrogen sulfide (via bacteria) as food to be oxidized.
The so-called sulfate-reducing bacteria, by contrast, "breathe sulfate" instead of oxygen. They use organic compounds or molecular hydrogen as the energy source. They use sulfur as the electron acceptor, and reduce various oxidized sulfur compounds back into sulfide, often into hydrogen sulfide. They can grow on a number of other partially oxidized sulfur compounds (e.g. thiosulfates, thionates, polysulfides, sulfites). The hydrogen sulfide produced by these bacteria is responsible for some of the smell of intestinal gases (flatus) and decomposition products.
Sulfur is absorbed by plants via the roots from soil as the sulfate and transported as a phosphate ester. Sulfate is reduced to sulfide via sulfite before it is incorporated into cysteine and other organosulfur compounds.[71]
SO42'' '†' SO32'' '†' H2S '†' cysteine '†' methioninePrecautionsEditElemental sulfur is non-toxic, as generally are the soluble sulfate salts, such as Epsom salts. Soluble sulfate salts are poorly absorbed and laxative. However, when injected parenterally, they are freely filtered by the kidneys and eliminated with very little toxicity in multi-gram amounts.
When sulfur burns in air, it produces sulfur dioxide. In water, this gas produces sulfurous acid and sulfites, which are antioxidants that inhibit growth of aerobic bacteria and allow its use as a food additive in small amounts. However, at high concentrations these acids harm the lungs, eyes or other tissues. In organisms without lungs such as insects or plants, it otherwise prevents respiration in high concentrations. Sulfur trioxide (made by catalysis from sulfur dioxide) and sulfuric acid are similarly highly corrosive, due to the strong acids that form on contact with water.
The burning of coal and/or petroleum by industry and power plants generates sulfur dioxide (SO2), which reacts with atmospheric water and oxygen to produce sulfuric acid (H2SO4) and sulfurous acid (H2SO3). These acids are components of acid rain, which lower the pH of soil and freshwater bodies, sometimes resulting in substantial damage to the environment and chemical weathering of statues and structures. Fuel standards increasingly require that fuel producers extract sulfur from fossil fuels to prevent acid rain formation. This extracted and refined sulfur represents a large portion of sulfur production. In coal-fired power plants, flue gases are sometimes purified. More modern power plants that use synthesis gas extract the sulfur before they burn the gas.
Hydrogen sulfide is as toxic as hydrogen cyanide, and kills by the same mechanism, though hydrogen sulfide is less likely to cause surprise poisonings from small inhaled amounts, because of its disagreeable warning odor. Though pungent at first, however, hydrogen sulfide quickly deadens the sense of smell'--so a victim may breathe increasing quantities and be unaware of its presence until severe symptoms occur, which can quickly lead to death. Dissolved sulfide and hydrosulfide salts are also toxic by the same mechanism.
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ISBN 978-3-540-78593-4. ^Odyssey, book 22, lines 480''495 ' www.perseus.tufts.edu. Retrieved on 2012-08-16.^Pliny the Elder on science and technology, John F. Healy, Oxford University Press, 1999, ISBN 0-19-814687-6, pp. 247''249.^ abcZhang, Yunming (1986). "The History of Science Society: Ancient Chinese Sulfur Manufacturing Processes". Isis77 (3): 487. doi:10.1086/354207. ^White, David Gordon (1996). The Alchemical Body '-- Siddha Traditions in Medieval India. Chicago: University of Chicago Press. pp. passim. ISBN 978-0-226-89499-7. ^Lin, A. N.; Reimer, R. J.; Carter, D. M. (1988). "Sulfur revisited". Journal of the American Academy of Dermatology18 (3): 553''558. doi:10.1016/S0190-9622(88)70079-1. PMID 2450900. ^Maibach, HI; Surber, C.; Orkin, M. (1990). "Sulfur revisited". Journal of the American Academy of Dermatology23 (1): 154''156. doi:10.1016/S0190-9622(08)81225-X. PMID 2365870. ^Gupta, A. K.; Nicol, K. (2004). "The use of sulfur in dermatology". Journal of drugs in dermatology : JDD3 (4): 427''31. PMID 15303787. ^Riall, Lucy (1998). Sicily and the Unification of Italy: Liberal Policy and Local Power, 1859''1866. Oxford University Press. ISBN 9780191542619. Retrieved 2013-02-07. ^Thomson, D. W. (April 1995). "Prelude to the Sulphur War of 1840: The Neapolitan Perspective". European History Quarterly25 (2): 163''180. doi:10.1177/026569149502500201. ^Botsch, Walter (2001). "Chemiker, Techniker, Unternehmer: Zum 150. Geburtstag von Hermann Frasch". Chemie in unserer Zeit (in German) 35 (5): 324''331. doi:10.1002/1521-3781(200110)35:53.0.CO;2-9. ^Kogel, Jessica (2006). Industrial minerals & rocks: commodities, markets, and uses (7th ed.). Colorado: Littleton. p. 935. ISBN 978-0-87335-233-8. OCLC 62805047. ^Sulfuric Acid Growth. Pafko.com. Retrieved on 2012-08-16.^Sulfur as a fertilizer. Sulphurinstitute.org. Retrieved on 2012-08-16.^Zhao, F.; Hawkesford, MJ; McGrath, SP (1999). "Sulphur Assimilation and Effects on Yield and Quality of Wheat". Journal of Cereal Science30 (1): 1''17. doi:10.1006/jcrs.1998.0241. ^Blake-Kalff, M. M. A. (2000). "Diagnosing sulfur deficiency in field-grown oilseed rape (Brassica napus L.) and wheat ( Triticum aestivum L.)". Plant and Soil225 (1/2): 95''107. doi:10.1023/A:1026503812267. ^Ceccotti, S. P. (1996). "Plant nutrient sulphur-a review of nutrient balance, environmental impact and fertilizers". Fertilizer Research43 (1''3): 117''125. doi:10.1007/BF00747690. ^Mohamed, Abdel-Mohsen Onsy; El Gamal, M. M (2010-07-13). Sulfur Concrete for the Construction Industry: A Sustainable Development Approach. pp. 104''105. ISBN 978-1-60427-005-1. ^Every, Richard L. et al. (1968-08-20). "Method for Preparation of Wettable Sulfur". Retrieved 2010-05-20. ^Spencer, Benjamin Sulfur in wine demystified. intowine.com. Retrieved 2011-10-26.^Hagers Handbuch der Pharmazeutischen Praxis (in German) 6B (4th ed.). Berlin''Heidelberg''New York: Springer. 1978. pp. 672''9. ISBN 3-540-07738-3. ^Arzneibuch-Kommentar. Wissenschaftliche Erl¤uterungen zum Europ¤ischen Arzneibuch und zum Deutschen Arzneibuch [Pharmacopoeia Commentary. Scientific annotations to the European Pharmacopoeia and the German Pharmacopoeia] (in German) (23rd ed.). Stuttgart: Wissenschaftliche Verlagsgesellschaft. 2004. Monographie Schwefel zum ¤uŸerlichen Gebrauch [Monograph Sulfur for external use]. ISBN 978-3-8047-2575-1. ^ abNelson, D. L.; Cox, M. M. (2000). Lehninger, Principles of Biochemistry (3rd ed.). New York: Worth Publishing. ISBN 1-57259-153-6. ^Thauer, R. K. (1998). "Biochemistry of methanogenesis: a tribute to Marjory Stephenson:1998 Marjory Stephenson Prize Lecture". Microbiology144 (9): 2377''2406. doi:10.1099/00221287-144-9-2377. PMID 9782487. ^Lippard, S. J.; Berg, J. M. (1994). Principles of Bioinorganic Chemistry. University Science Books. ISBN 0-935702-73-3. ^Pronk JT; Meulenberg R; Hazeu W; Bos P; Kuenen JG (1990). "Oxidation of reduced inorganic sulphur compounds by acidophilic thiobacilli". FEMS Microbiology letters75 (2''3): 293''306. doi:10.1111/j.1574-6968.1990.tb04103.x. ^Heldt, Hans-Walter (1996). Pflanzenbiochemie. Heidelberg: Spektrum Akademischer Verlag. pp. 321''333. ISBN 3-8274-0103-8. External linksEdit
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ICD-10
Search Engine
You mentioned ICD-10 in the last show--although hospital billing is very boring I thought a couple things were interesting during my time in the industry. I used to work for a company that you could say is 'the ICD-* search engine'. Doctors have to enter in and search every diagnosis when they enter into their patient charts. Something like 80%+ of all doctors use it in the US.
Because using a computer for health records is mandated, one company has insight into almost every diagnosis being reported in the US (and growing internationally too). They don't get your name and other identifiable info, it;s just the actual diagnosis and meta-data. Naturally, they're selling (or about to sell) this data to pharma companies so that they can presumably push their anti-depressant and dick pill commercials to better geographical areas, or A/B test their commercials and find out what gets resilts, I.e. causes an increase in people reporting depression or whatever. Also, apparently the CDC has no interest in this data but I don't know why.
Another thing is that not surprisingly the government makes billing and re-imbursement stuff intentionally difficult so that hospitals get less money back. They are extremely nitpicky about paperwork, and you can't resubmit when there are errors. They intentionally fill ICD and other billing stuff like HCC with patent ambiguity to make it harder to document right and get paid (really, to get paid back).
Here are some other ridiculous ICD-10 codes I remember:
-Burn due to water-skis on fire
-Struck by turtle
-Sucked into jet engine, subsequent encounter (i.e. guy got sucked into a jet engine, somehow lived, and is now coming back for a check-up)
Jack
Detailed overview from DNB-crazy codes!
ITM Adam and John!
I have been a dude named Ben in Healthcare IT for the last 6 years and I hold a CPHIMS certification (which isn't just like a BS MCSE).
While you did get most things correct on the Thursday's show, I wanted to shed some light on why medical records are going digital and the potential risks that come with it. I've worked at 3 different hospitals in California ranging from a small critical-access facility (10-25 beds typically that's basically a big Emergency Dept) to a 200 bed Level I Trauma Center where I currently work.
BTW, before I start here are some of my favorite ICD10 codes:
V97.33XD: Sucked into jet engine, subsequent encounter.
V00.01XD: Pedestrian on foot injured in collision with roller-skater, subsequent encounter.
Y92.146: Swimming-pool of prison as the place of occurrence of the external cause.
W61.62XD: Struck by duck, subsequent encounter.
63.1: Problems in relationship with in-laws.
R46.1: Bizarre personal appearance.
Security
At my current facility, we had to disable our password expiration policy network-wide because the Execs were annoyed that they had to change their password. There are numerous generic accounts that can be used to access all sorts of areas in the EHR (Electronic Health Record).
There are no requirements for security audits, although HIPAA and the HITECH act lay out most of the strict requirements specifically for patient records. Our WiFi networks do have MAC address filtering and segmented networks for patients/visitors, and of course there are other things in place, however we have had 3 major data breaches. Not by hackers, but by idiocy. One was 50k patient records were, for some reason, on a laptop that was stolen from a car. The laptop didn't have encryption on the hard drive, but they do now.
For medications, we have cabinets like this that dispense medications after you enter in what you need. However, they can be put into manual override mode (like during a downtime) and then it's a free for all--just grab whatever you want.
As with anything digital, if someone really wanted to get to it, then can. We have TONS of temp contractors come in who get the generic admin password that hasn't changed in 10 years. I got locked out of my account the other day and used the generic admin account to VPN into the network, connect to our domain controller and reset my own password--yea, scary.
Obamacare & Meaningful Use
Bush mandated the use of EHRs in 2005, but the government incentives to actually put it into place didn't actually come into play until the American Reinvestment & Recovery Act in 2009. Under this program, healthcare providers were mandated to meet certain standards and have EHRs (called Meaningful Use) in stages. If they complied, they would get a chunk of change from the government. My last hospital, just 85 beds (a TINY place compared to most) got almost $5 million after meeting the standards early.
The standards become mandatory in 2015 and if you don't meet them you will no longer receive Medicare payments. What you may not realize that most small, community hospitals (like the 85 bed facility) usually get around 80% of their revenues from Medicare--making them essentially (ding ding!) government run hospitals. Without Medicare, you'd have to close. These standards also include stipulations like if a Medicare patient is readmitted with the same diagnosis within 30 days, you don't get paid for it. It's supposed to encourage better care but that's largely not the case.
Big Data
One set of standards in MU mandates the reporting of Core Measures--things like how many patients have heart disase, diabetes, substance use smoke cigarettes, etc (more here: http://www.jointcommission.org/core_measure_sets.aspx). When a patient is admitted, this data is automatically sent to the federal government. While every single hospital in the country must send this data, data itself is actually less portable than you might think.
At my facility, we have over 100 healthcare applications and even an iPhone app used for discharge planning. Systems for the Birth Center, cancer center, imaging, the kitchen, EVS (janitors--so they know which rooms are ready to be cleaned), revenue management, ordering meds, using lab equipment, etc etc. Only about half of these pieces of software talk to each other. Things like the list of patients, diagnosis, lab results, xrays are sent in between systems via an interface standard called HL7.
Now that most facilities in the country are up on EHRs, Health Information Exchanges (HIE) are being developed. These are regional, national, or local data repositories that a hospital feeds ALL their data into so insurance companies, other hospitals, and the government can have easy access to it. This is the next level of "big data" and it'll change the game completely. Right now we live in a segmented world where very few doctor's offices exchange data with hospitals so a single patient could have dozens of separate medical records. HIE systems are being billed as the way for a single record to follow you everywhere.
IT $$$$
As you can imagine, the IT costs suddenly on hospital's balance sheets are astronomical and came out of nowhere. We have our core EHR hosted by the vendor in an offsite data center. There are only 4 major EHR vendors (a bunch of ancillary ones, too, but 4 CORE big guys): Epic (Kaiser uses this), Cerner (Sutter uses this), Meditech and McKesson Paragon (we use this one). Being at the mercy of this vendor is painful--just the other day a guy accidentally turned off our SQL database and took the Paragon system down for 30 minutes. We had a network issue that took it down for 10 hours yesterday, too. When the system goes down, "providers" (as they really are called or clinicians) have to revert to paper for ordering meds, notes, admitting patients, etc and then input it all into the computer when the system is back up. We have a quarterly 7-10 hour downtime for our vendor to upgrade the core system with patches, updates, etc. And as with all upgrades, it fixes 10 things and breaks 20 new things. Sometimes it seems like they don't even test the new release before giving it to us.
A big problem with these massive EHRs are the infrastructure costs. To come up on the next major version of Paragon, we have to spend several hundred thousand dollars to upgrade our domain, our network switches, add more disc space in the SAN, and countless other things. Oh and the state has regulatory requirements built into these releases, so you HAVE to update regularly. And the next upgrade is like going from Windows 2000 to Windows 8 so it will require a huge amount of staff training.
We just moved from one hosted vendor to another and it took 12 months of planning, 15 hours of the hospital being completely back on paper for the migration, and around $5 million. We are considered a mid-sized hospital, so just imagine what Kaiser or other big systems are doing. As you can imagine, this is an absolute bonanza for consults and dudes named Ben. Our IT dept has around 50 people and the hospital itself has a staff of about 1,500. Our top paid engineers make close to $200k and they deserve it. Our IT budget is 6% of the overall annual budget for the entire hospital. A typical EHR takes 3 years to implement and can cost several million dollars in the end (or up to a billion for a place like Kaiser/Sutter).
Now, it may seem like I'm poopooing the entire idea of EHRs, but there are certainly benefits. Medical errors have been reduced by 50%, cost savings have been realized, and the entire team of providers, case managers, physical therapsists etc can see the same information and communicate more effectively about a patient's condition and treatment. It's pretty cool. Docs use the system to order all medications and we had a case where an unconscious patient's primary care doc was called by our ED. He was out sailing in the bay and used his phone to look up what allergies the patient had and it turned out there were a few bad ones--without an EHR that patient could have died. However, usability is not one of the positive angles of EHRs.
Usability
Nurses and doctors HATE computer systems for the most part. They are some of the hardest customers on the planet. Most have used other EHRs and the grass is always greener. Many of them are nice about it, but getting berated about some random feature or bug in the system is a regular occurrence even though we are powerless to fix a lot of them. I was shadowing an OR case the other day and right as the surgeon put the knife into the patient, the 42'' TV running our EHR showing him where to cut timed out to screensaver--there are a million examples like that. It's comical almost.
Hope this helps your understanding of Healthcare IT! If you have any questions specifically just let me know.
Bingo boom shakalaka
More crazy codes from Carwin
2015 ICD-10-CM Diagnosis Code V91.07XA
Burn due to water-skis on fire, initial encounter
2015Billable CodeNot A Principal Dx
V91.07XA describes the circumstance causing an injury, not the nature of the injury, and therefore should not be used as a principal diagnosis.
V91.07XA is a billable ICD-10-CM code that can be used to indicate a diagnosis for reimbursement purposes.
On October 1, 2015 ICD-10-CM will replace ICD-9-CM in the United States, therefore, V91.07XA - and all other ICD-10-CM codes - should only be used for training or planning purposes until then.
This is the American ICD-10-CM version of V91.07XA. Other international ICD-10 versions may differ.
HIPPA training
ITM Adam,
Feel free to use whatever portion of this you feel is appropriate.
I was listening to the 712 show and in the first half hour you talk about HIPPA having some regulation about sharing health info with the government. I work at an assisted living facility and just finished the HIPPA training, put together by the HIPPA people. We are told and trained to cooperate and share any date with the government that is asked for. Not that I am saying you are wrong, I think HIPPA does have in the regulation that minimal, only, sharing is expected, but the training they are giving the "boots on the ground" is that we are to comply with any government BS. I agree with your conclusion that a mental health database is being setup and we are going to get screwed in the future.
Sir Greg
The 16 most absurd ICD-10 codes | Healthcare Dive
Fri, 10 Apr 2015 18:47
There are 68,000 billing codes under the new ICD-10 system, as opposed to a paltry 13,000 under the current ICD-9. The expansive diagnostic codes, intended to smooth billing processes and assist in population health and cost reduction across the healthcare delivery system, have providers across the board worried about integration: A recent survey by the American Health Information Management Association and the eHealth Initiatives found that 38% of providers think revenue will decrease in year following the switch from ICD-9, while only 6% think revenue will increase.
Still, providers are preparing for the switch. After yet another delay this year, the official changeover date is set for October 1, 2015'‹, and 40% of respondents say they will be prepared to do end-to-end testing by the end of this year.
Despite the controversy surrounding ICD-10, there is one universally agreed-upon upside to the hyper-specific coding system: Weird and obscure codes that stand for bizarre medical injuries. There's even an illustrated book, Struck by an Orca: ICD-10 Illustrated. (Healthcare Dive is super into it.)
Therefore, behold! The 16 most absurd codes in the entire ICD-10 set, with a little advice from Healthcare Dive on how to handle these cases should they come into your ER:
16. V97.33XD: Sucked into jet engine, subsequent encounter. Sucked into a jet engine, survived, then sucked in again? First of all, that really, really sucks. Second of all, this patient is obviously Wolverine, and should be detained for imaging and posterity.
(Technically, this means "subsequent encounter with a physician" not "subsequent encounter with a jet engine," but that's less dramatic.)
15. W51.XXXA: Accidental striking against or bumped into by another person, sequela. The "sequela" here implies the kind of human bumper cars that can only happen at a music festival, the subway or possibly an active combat zone. Potentially fatal for agoraphobics. Recommend handling with care.
14. V00.01XD: Pedestrian on foot injured in collision with roller-skater, subsequent encounter.First, are roller skates even still a thing anymore? I mean, other than how one knows spring has sprung in Central Park? Second, can you call a person on roller skates a pedestrian? Thirdly, if the answers to one and two are "yes," then these things should be outlawed, because they are obviously dangerous.
13. Y93.D: Activities involved arts and handcrafts. Camp is a dangerous thing. Hot glue guns and knitting needles definitely wouldn't be allowed on a plane, yet we habitually allow 7-year-olds to play with them. This is a public health crisis that needs to be addressed.
12.Z99.89: Dependence on enabling machines and devices, not elsewhere classified.There's a reason they call it the Crackberry. This is an obsolete joke, but there just isn't an iPhone pun that can compete with "crackberry."
11. Y92.146: Swimming-pool of prison as the place of occurrence of the external cause.There is also a code for "day spa of prison as the place of occurrence."
10. S10.87XA: Other superficial bite of other specified part of neck, initial encounter.Alright, people. Let's call a spade a spade. "Other superficial bite of other specified part of the neck?" This is a hickey. Admit it. Although why anyone would be admitted for that remains a mystery.
9. W55.41XA: Bitten by pig, initial encounter'‹.First, be sure that the patient is restrained from doing whatever he or she may have done to provoke the pig in the first place. Security should be placed on alert. Also, what was this person doing in a farm setting in the first place? Pigs are not pets.
8. W61.62XD: Struck by duck, subsequent encounter.Maladies that rhyme should be given immediately priority in the ER. Ducks, like most water fowl, are mean-spirited animals and this case should be treated with the utmost urgency as it is likely to be a serious injury.
7. Z63.1: Problems in relationship with in-laws. Who doesn't?
'‹'‹6. W220.2XD: Walked into lamppost, subsequent encounter. No. No. People. You only get to do this once. ONCE. If a patient is going around whacking into lampposts regularly, there is a deeper problem here, and he should be referred to psych immediately.
5. Y93.D: V91.07XD: Burn due to water-skis on fire, subsequent encounter'‹.How does this happen? Are water skis even flammable?
4. W55.29XA: Other contact with cow, subsequent encounter."Other contact with cow." OTHER CONTACT WITH COW? There are codes for "bitten by cow" and "kicked by cow." What else is there?! What, precisely, is the contact with the cow that has necessitated a hospital visit?!
3. W22.02XD: V95.43XS: Spacecraft collision injuring occupant, sequela. The existence of this type of code does not engender trust in the National Aeronautics and Space Administration. Shouldn't they have more control over their spacecraft than that? Or are they just careening around in the ether, pinging into one another and injuring occupants/astronauts?
2. W61.12XA: Struck by macaw, initial encounter. '‹Macaws are endangered'--some are extinct in the wild'--so if a patient has been struck by a macaw, chances are, it was the patient's fault. Consider calling the SPCA and/or the police. The macaw needs to be found and treated immediately.
'‹1. R46.1: Bizarre personal appearance. LADY GAGA, IS THAT YOU? WE LOVE YOUR MEAT SUIT.
But seriously, who gets to decide what constitutes "bizarre personal appearance"? Let the people do what they want!
Did we miss one? Tweet us your favorite bizarre code at @healthcaredive. Would you like to see more healthcare news like this in your inbox on a daily basis? Subscribe to our Healthcare Dive email newsletter. You may also want to read Healthcare Dive's feature on the ICD-10 delay.
MIC
A-10 Scandal
Silent Death - The Zipper
Scorpion = Barbie Plane
Air Force Right to Fire General Who Threatened Troops with Treason
Sun, 12 Apr 2015 05:02
Air Force Right to Fire General Who Threatened Troops with TreasonApril 10, 2015
Major General James N. Post III
The Air Force's decision to remove Major General James Post from his position as vice commander of Air Combat Command was the right move.
As we said in our February 5 letter to the Air Force Secretary, Major General Post had to be held accountable. When he told service members it would be ''treason'' to communicate with Congress about the A-10's capabilities it showed he was unfit for command.
Members of the military have a constitutional right to communicate with Congress. To threaten them with an offense as serious as treason goes against the very oath that all military personnel and Major General Post, himself, had to take.
We look forward to an investigation into the retaliation against those who brought Major General Post's remarks to light.
Read POGO's letter to the Air Force Secretary.
Read the Air Force Inspector General's investigation into Major General Post.
Image by AF.mil
Ms. Brian's areas of expertise include: National Security, Government Oversight, Wasteful Defense Spending, Ethics, Open Government, Whistleblower Issues
Topics:Government Accountability, National Security
Authors:Danielle Brian
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Latest PodcastPodcast; Social Media, Internet Provides Opportunities, Challenges for LawmakersThe Congressional Management Foundation offers the Gold Mouse Awards annually to members of Congress who make the most of the opportunity the digital world offers them. POGO spoke with members of Rep. Mike Honda's communications team about their award.
Hold Post Accountable for His Chilling Statement
Sun, 12 Apr 2015 05:01
February 5, 2015
February 5, 2015
The Honorable Deborah Lee JamesSecretary of the Air ForceU.S. Department of the Air Force1670 Air Force PentagonWashington, DC 20330-1670
Via email:
Dear Secretary James:
We are writing to express our deep concerns about reported comments from Major General James Post that service members who communicate to Congress about the capabilities and successes of the A-10 are committing ''treason.''[1] These comments undermine service members' constitutional rights to petition their government, and appear to violate statutory protections for military whistleblowers.[2] Most importantly, they try to interfere with Congress's ability to learn how these systems are currently performing in combat to address current threats, precisely the kind of information they need to know to conduct their constitutional duties and to oversee the Air Force's operations and programs.
We are also deeply concerned about allegations that the Air Force has initiated retaliatory investigations against service members who have already come forward to Congress.[3] If true, this seems to indicate that there is a broader problem of a toxic culture against whistleblowers. We urge you to ensure that no prohibited personnel actions are taken against any service members who have come forward, and to suspend or remove any officials found to be responsible for initiating retaliatory investigations.
Major General Post's comments seriously call into question his judgment and ability to continue in his role as vice commander of the Air Force's Air Combat Command. Major General Post has not denied making these comments, and while we understand that an investigation is ongoing, we think the known facts merit his immediate removal. At the very least, he should be suspended while the investigation is ongoing and removed if the allegations are proven to be true.
As you are aware, Congress recently expanded whistleblower protections for service members to ensure that they could come forward without fear of retaliation. These reforms were initiated following reports of reprisal against sexual assault survivors, including 62 trainees at Lackland Air Force Base, and against Air National Guard whistleblowers expressing concerns about the F-22's On-Board Oxygen Generation System (OBOGS).[4] Given these previous concerns about the Air Force's treatment of whistleblowers, we believe it is particularly incumbent upon you to send a strong signal that retaliatory behavior will not be tolerated.
We appreciate your attention to this issue, and would welcome the opportunity to discuss this in more detail with you or your staff. If you have any questions or would like additional information, please contact Mandy Smithberger at the Project On Government Oversight's Straus Military Reform Project at 202-347-1122 or msmithberger@pogo.org.
Sincerely,
Project On Government Oversight
Center for Financial Privacy and Human Rights
Government Accountability Project
International Association of Whistleblowers
London Center for Policy Research
National Whistleblower Center
NETWORK, A National Catholic Social Justice Lobby
Peace Action
Taxpayers Protection Alliance
Whistlewatch.org
Elaine Mittleman, Esq.
Kevin Downing
cc: Senator John McCain, Chairman, Senate Armed Services CommitteeSenator Jack Reed, Ranking Member, Senate Armed Services CommitteeRepresentative Mac Thornberry, Chairman, House Armed Services CommitteeRepresentative Adam Smith, Ranking Member, House Armed Services CommitteeMembers of the House and Senate Armed Services CommitteeSenator Susan CollinsSenator Chuck GrassleySenator Mark Warner
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SCORPION-Could This Airplane Replace the A-10 Warthog? (TXT)
Sun, 12 Apr 2015 05:52
The Fairchild Republic A-10 Thunderbolt. Armed and... in danger? Photo source: Wikimedia Commons.
After more than four decades in service, the A-10 Warthog is due for a replacement. So says the U.S. Air Combat Command.
What's more, ACC says it's already "thinking about" fielding such a replacement. But what might that replacement be?
Last week, we got a clue. As reported by Reuters, the Air Force has recently begun evaluating Textron's (NYSE: TXT ) Scorpion fighter jet as a potential 21st-century replacement for the 20th-century Warthog.
Quoting Air Force Gen. Herbert Carlisle, head of ACC, Reuters reports that the Air Force has done "some research" on Textron's new budget-priced Scorpion. And Carlisle thinks the plane just might be what the Air Force needs to perform close-air support in "contested environments" that could prove lethal to the A-10.
But what exactly is Scorpion, and how does it stack up against the A-10 Thunderbolt Warthog?
Source: Textron AirLand.
Introducing Scorpion Textron describes Scorpion as a modern "surveillance and strike" aircraft boasting:
twin turbofan engines, producing 8,000 lbs. of combined thrusta 45,000-foot top altitudea top speed of 520 mphsix hard points for carrying weapons on its wings (6,200 lbs. capacity)room for 3,000 lbs. more payload in an internal weapons baya flyaway cost of less than $20 million -- and an hourly operations cost of about $3,000Relative to the A-10 Warthog, Textron's Scorpion has about half as much engine power -- but also half the weight. The aircraft's range is roughly equal to the A-10's, but the Scorpion is a better "sprinter," featuring both a faster maximum speed and a slower "stall speed" -- important for flying low-and-slow on ground support missions.
Of course, the biggest difference between Scorpion and the A-10 Warthog is the absence of a "big gun" -- specifically, the 30 mm GAU-8 Avenger rotary cannon that is both the A-10's primary weapon and its defining feature. Designed to kill Soviet tanks in a circa-1980s Cold War confrontation -- and actually used to destroy nearly 900 Soviet-vintage Iraqi tanks in the 1990s Gulf War I -- the A-10's big gun is notably absent from Textron's Scorpion.
Close-up shot of the A-10 Warthog's very big gun. Photo source: Omono via Wikimedia Commons.
But can Scorpion replace the A-10 Warthog without it?
Scorpion's biggest fan Bill Anderson, president of Textron AirLand, thinks so. In a recent phone conversation, Anderson pointed out that Textron originally developed Scorpion to perform a "Multi Mission, ISR/strike platform" role. It thus was not designed to duplicate the A-10's mission; it prefers using precision weapons to attack ground targets from a safe distance out of range of enemy defenses.
That fact addresses the Air Force's concerns about the A-10 Warthog's survivability. And flying high and fast, Scorpion might be a good candidate to take over the A-10's role in some threat environments.
As Anderson explains it, "two abilities are critical" for any aircraft performing close-air support: "The ability to communicate with ground forces, and the ability to find and fix a target." Anderson argues that "Scorpion is very good in both these roles, and can loiter up to five hours," providing ground support as needed through its suite of high-tech, standoff weapons. What's more, while the aircraft doesn't carry an integrated 30 mm cannon, its modular design permits it to carry one or even two cannon "pods" on its wings, to provide a strafing ability when there's a need to get up close and personal.
Textron's Scorpion: No big gun, but room for more than a few big bombs. Photo source: Textron AirLand.
A budget-priced fighter jet for tight fiscal times Most crucially, Textron's Scorpion is both cheap to buy and cheap to fly, and designed to permit easy upgrades over time. This addresses the big problem with modern fighter jets, in that they cost a fortune, take forever to develop, and by the time they're introduced, they're often stuck using out-of-date technology.
Citing research from DARPA, Anderson notes that, in decades past, it was possible to design and build a new fighter jet in five to 10 years. These days, it takes closer to 20 years to bring a new concept to market. Thus, technology that was cutting-edge when the Lockheed Martin's F-22 Raptor and F-35 Lightning II were first envisioned, for example, is now already becoming obsolete -- just as the planes are starting to fly.
To address this problem, Textron built Scorpion with off-the-shelf parts -- taking fully vetted "mature high technology" that is already available, and assembling it into a jet that's modern today -- and can be upgraded as technology advances tomorrow. This permitted an exceptionally fast turnaround time in developing the plane. As Anderson describes it, "From the time we got the 'go' signal, from a clean slate, it took 23 months for Scorpion to take its first test flight."
An attractive proposition As a result, the Scorpion is nearly as cheap to buy as it is to fly. Extrapolating from historical U.S. Air Force data, the current-day cost of a new A-10 would be approximately $18.6 million -- roughly equal to Scorpion's price tag. Theoretically, at least, the Air Force could swap its entire fleet of old A-10s for shiny new Scorpions at a cost of less than $6 billion. (And incidentally, that would be worth about 40% of a year's revenues to Textron.)
They might even be tempted to make such a switch. Air Force figures show that, per flight hour, it costs $17,716 to operate an A-10 Warthog -- whereas Textron says Scorpion will cost just one-sixth of that, giving the Air Force a much reduced operating cost.
Granted, for die-hard supporters of the A-10 Warthog -- and they are legion -- anything less than a full-fledged A-10 probably isn't going to cut it as a replacement for the aging warbird. But for a U.S. Air Force that's increasingly strapped for cash, with much of its budget tied up buying high-end F-35 fighter jets, Textron's Scorpion seems to offer a way to perform low-tech, low-and-slow close-air support on a budget.
Now all Textron has to do is convince the Air Force to buy it.
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Scorpion: It can do tricks. But for close-air support missions, will it do the trick? Photo source: Textron AirLand.
The Air Force's Awesome Attack Plane Has a Pretty Sad Replacement '-- War Is Boring '-- Medium
Sun, 12 Apr 2015 05:46
A-10 Warthog. Bryan William Jones PhotoThe A-10 is the best warplane for saving lives'Š'--'Štoo bad its days are numberedOn July 24, dozens of U.S. troops in Afghanistan were nearly wiped out by a Taliban ambush. Until two A-10 Warthog attack planes showed up.
It began with a routine patrol to clear a highway of bombs. But the convoy of 12 vehicles and 60 soldiers got stuck when the lead vehicle fell into a ravine and flipped over. Night fell, and the soldiers worked to pull the vehicle out. Meanwhile, the Taliban quietly set up firing positions along a tree line with a view of the stranded soldiers.
At dawn, the Taliban opened fire.
The soldiers were in a bad place. The gunfire pinned them behind their vehicles. The Taliban were then free to move closer for a possible assault on the position, which could have caused potentially horrendous casualties for the Americans.
The A-10s roared in from Bagram Air Field near Kabul.
''I flew over to provide a show of force while my wingman was looking for gunfire below,'' one A-10 pilot said. ''Our goal with the show of force was to break the contact and let the enemy know we were there, but they didn't stop. I think that day the enemy knew they were going to die, so they pushed even harder and began moving closer to our ground forces.''
Flying low and slow, the A-10s strafed the Taliban. The aviators' eyesight'Š'--'Šand the bird's-eye view through the Warthog's big round canopy'Š'--'Šwas instrumental. ''Even with all our top-of-the-line tools today, we still rely on visual references,'' the pilot said.
For two bloody hours, the A-10s dropped three 500-pound bombs and strafed the militant positions 15 times, burning through thousands of 30-millimeter cannon rounds, according to the pilot. The Taliban fighters withdrew, leaving 18 of their dead behind.
Three U.S. troops were wounded. It could have been much worse.
The firefight was only briefly mentioned by the Air Force in a press release. It's one of hundreds of times the A-10 has rescued U.S. ground troops under fire in Iraq and Afghanistan. Its mere presence is often enough to deter an attack.
But the A-10 might not be around much longer.
A-10s in Kandahar, Afghanistan on Nov 6, 2009. David Axe photoThe competitionThe A-10 is a ground-attack airplane'Š'--'Šthe Air Force's only jet designed solely for such missions. The twin-engine fighter was developed during the Cold War to destroy Russian tanks steamrolling through Germany in the event of World War III. Its arsenal of rockets, missiles, bombs and a powerful 30-millimeter cannon destroyed huge numbers of Iraqi tanks during the first Gulf War, and the plane went on to fly regular missions over Iraq, Libya and Afghanistan.
The Warthog flies slow and looks ugly as Hell, but it was cheap to build'Š'--'Šabout $13 million in the early 1980s'Š'--'Šand its turbofan engines sip small amounts of fuel. The best feature is that the plane is essentially a flying gun that's super-lethal against anything on the ground. In recent years, it's also been upgraded with new sensors, wings and more advanced targeting systems.
But the Air Force is faced with a dilemma. Its main jet planned for the coming decades is the F-35 Joint Strike Fighter, a stealthy multi-role warplane equipped for both air-to-air and ground-attack missions. The F-35, which is still in development, could eventually replace most of the Air Force's fighter fleet.
At a cost of at least $400 billion just to develop and build, the F-35 is the most expensive military project ever. (A single F-35 costs more than $100 million.) The Air Force is also being ordered by Congress to trim billions from its share of the defense budget.
Maj. Gen. Steven Kwast, an influential voice in U.S. military doctrine as director of the Quadrennial Defense Review, said the F-35 is here to stay. ''We must be able to project power in contested environments and the Joint Strike Fighter is that machine,'' Kwast told reporters this week.
In military-speak, he means the long-range F-35 is what's needed to extend the range of U.S. fighters into areas where potential foes'Š'--'Šlike China'Š'--'Šcould deny U.S. warships access with a combination of advanced new aircraft and deadly anti-ship missiles. The end of the war in Iraq, and the upcoming U.S. withdrawal from Afghanistan, has led the Pentagon to downplay weapons used for fighting insurgents and plus-up gear for fighting some future war with Beijing.
That's also the conclusion reached by a recent review ordered by Defense Secretary Chuck Hagel, which suggested retiring 120 Warthogs of a total fleet of 343, on top of two squadrons of A-10s that have already been shuttered over the past year.
An A-10's 30-millimeter cannon. Bryan William Jones photoFalse promiseThere's one big problem. The F-35 is not particularly good at what it's designed to do and certainly can't replicate the A-10's performance. The JSF is stealthy, which is okay for avoiding detection and sneaking past enemies before destroying them at long range.
But in a close-range fight, the F-35 is dead.
The reason is how its cockpit is designed. Instead of a bubble-canopy like the A-10's, the F-35's windscreen looks like a giant clamshell. This means an F-35 pilot can see out of the front and sides of the cockpit, but not the back. That's a huge problem in a fast-moving dogfight, and equally problematic while supporting ground troops. A JSF flier could never get the same view of the battlefield that allowed the Warthog jockies to save all those soldiers.
Still, the F-35 will eventually replace the A-10 and be tasked with carrying out the same ground-attack missions currently assigned to the Warthog.
But the JSF just can't do the job. Besides having a terrible view of the battlefield, the F-35 is also too fast and lightly built to loiter over a hot ambush zone'Š'--'Šand its 25-millimeter gun comes with just 180 rounds, compared to the more than 1,100 bullets an A-10 carries. It's worth pointing out that the two Warthogs over the Afghan battle apparently fired all their ammunition.
''Note the actions the F-35 is incapable to perform,'' said Winslow Wheeler, director of the Straus Military Reform Project at the Project on Government Oversight in Washington, D.C. ''Among them long time loiter, low altitude observation of the problem, multiple gun passes with extreme accuracy.''
These things saved American lives. The A-10's replacement? Perhaps not.
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Joint terminal attack controller - Wikipedia, the free encyclopedia
Sun, 12 Apr 2015 05:25
A Joint terminal attack controller (JTAC) is the term used in the United States Armed Forces and some other military forces for a qualified service member who directs the action of combat aircraft engaged in close air support and other offensive air operations from a forward position. The term that is used in most other countries, as well as previously in the US and in the relevant NATO standard[1] is Forward Air Controller.[2] The term became effective in the US on September 3, 2003 with the publishing of Joint Publication (JP) 3-09.3 Close Air Support.[3]
Australia[edit]In 2006, the Royal Australian Air Force became the first foreign air force to receive Joint Terminal Attack Controller (JTAC) accreditation from the United States Joint Forces Command (USJFCOM).[4]No. 4 Squadron RAAF runs JTAC training, and provides trained controllers to other units, with its main role being to support the units of the Special Operations Command. JTAC-qualified personnel have served in Afghanistan.[5][6]
United States[edit]In the United States Armed Forces a qualified and current joint terminal attack controller is recognized across the U.S. Department of Defense as being capable and authorized to perform terminal attack control.[citation needed]
United States Marine Corps students are trained at the Expeditionary Warfare Training Group, Pacific (EWTGPAC), and Atlantic (EWTGLANT). United States Air Force students receive their training at Nellis Air Force Base in Nevada, while United States Navy students are trained at the Naval Strike and Air Warfare Center (NSAWC) at Naval Air Station Fallon in Nevada by SEALs assigned to NSAWC. Members of special operations units attend the Special Operations Terminal Attack Control Course (SOTACC) at Yuma Proving Ground, Arizona.[citation needed]
Air Force JTACS also trained at Spangdahlem Air Base, in Germany, through the Joint Firepower Center of Excellence (JFCOE).[7]
Italy has qualified JTAC operators in its tier 1, 2 and 3 teams. Some of these operators have served in Afghanistan, as part of TF45. During the Afghanistan War, AMX ground attack aircraft from the Italian Air Force TF BLACK CATS conducted Close Air Support with JTAC operators on the ground provided by the Italian Army, the Carabinieri, and the Navy and Air Force.[8] The equipment used by Italian JTAC operators is not well publicized, although the equipment used by 185 RRAO has been briefly reported on.[9] The training areas used by Italian JTACs are also kept secret. It has been reported that Italian JTACs will potentially work with the newest gunship, the MC-27J Praetorian in the future.[10]
See also[edit]References[edit]^"NATO STANAG 3797 MINIMUM QUALIFICATIONS FOR FORWARD AIR CONTROLLERS & LASER OPERATORS IN SUPPORT OF FORWARD AIR CONTROLLERS". NATO. ^"Training the RAF's eyes and ears". BBC. February 14, 2009. Retrieved May 7, 2010. I ask if Prince Harry's deployment as a forward air controller, or what the Americans term a "JTAC" (joint tactical air controller or joint terminal attack controller), has boosted the number of volunteers for the job. ^Lieutenant Colonel Steven P. Milliron, Army Aviation. "Army JTAC training--the way ahead.". U.S. Field Artillery Association. Effective 3 September 2003 with the publishing of Joint Publication (JP) 309.3 Tactics. Techniques and Procedures (TTP) for Close Air Support, the joint community codified the requirements for an individual to direct the actions of combat aircraft engaged in CAS and other air operations. This position, called a "joint terminal attack controller" was created to standardize the certification and qualification process for terminal attack controllers to ensure a common capability across the services. The Army needs to develop Soldiers who, from a forward position, can deliver joint indirect fires and direct the actions of joint combat aircraft. The Joint Combat Aircraft (JCA) is the official designation used by the United Kingdom's Ministry of Defence for the F-35 Lightning II, formerly known as the Joint Strike Fighter, and the result of the Joint Strike Fighter competition. ^Defence Magazine, June 2006[dead link]^Allard, Tom (March 17, 2008). "New squadron will aim to cut civilian deaths". The Sydney Morning Herald. Retrieved September 19, 2008. ^Air Power Development Centre (June 2014). "Combat Control in the RAAF". Pathfinder Issue 224. Royal Australian Air Force. ^"Joint Multinational Warriors". 7th U.S. Army Joint Multinational Training Command. Winter 2007. The Joint Fires Center of Excellence exists to train Army and Air Force forward observers and Joint Terminal Attack Controllers. [dead link]^Janez. "Task Force 45". Retrieved November 7, 2014. ^"Home - 185 RRAO". 185 RRAO. Retrieved November 7, 2014. ^"MC-27J Praetorian - Alenia Aermacchi". Retrieved November 7, 2014. External links[edit]
U.S.C. Title 18 - CRIMES AND CRIMINAL PROCEDURE
Sat, 11 Apr 2015 22:23
U.S.C. Title 18 - CRIMES AND CRIMINAL PROCEDURE18 U.S.C.United States Code, 2011 EditionTitle 18 - CRIMES AND CRIMINAL PROCEDUREPART I - CRIMESCHAPTER 1 - GENERAL PROVISIONSSec. 4 - Misprision of felonyFrom the U.S. Government Printing Office, www.gpo.gov
§4. Misprision of felonyWhoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.
(June 25, 1948, ch. 645, 62 Stat. 684; Pub. L. 103''322, title XXXIII, §330016(1)(G), Sept. 13, 1994, 108 Stat. 2147.)
Historical and Revision NotesBased on title 18, U.S.C. 1940 ed., §251 (Mar. 4, 1909, ch. 321, §146, 35 Stat. 1114).
Changes in phraseology only.
Amendments1994'--Pub. L. 103''322 substituted ''fined under this title'' for ''fined not more than $500''.
U.S.C. Title 18 - CRIMES AND CRIMINAL PROCEDURE18 U.S.C.United States Code, 2011 EditionTitle 18 - CRIMES AND CRIMINAL PROCEDUREPART I - CRIMESCHAPTER 1 - GENERAL PROVISIONSSec. 4 - Misprision of felonyFrom the U.S. Government Printing Office, www.gpo.gov
§4. Misprision of felonyWhoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.
(June 25, 1948, ch. 645, 62 Stat. 684; Pub. L. 103''322, title XXXIII, §330016(1)(G), Sept. 13, 1994, 108 Stat. 2147.)
Historical and Revision NotesBased on title 18, U.S.C. 1940 ed., §251 (Mar. 4, 1909, ch. 321, §146, 35 Stat. 1114).
Changes in phraseology only.
Amendments1994'--Pub. L. 103''322 substituted ''fined under this title'' for ''fined not more than $500''.
Six Week Cycle
Army Recruit Charged With Helping ISIS Watched by FBI, Given Clearance by Army - The Intercept
Sun, 12 Apr 2015 14:36
A Kansas man arrested and charged Friday morning for attempting to provide material support to the Islamic State was under surveillance by the FBI last year when he checked himself into a mental institution and was not regarded as an immediate threat, according to a document obtained by The Intercept.
In fact, the U.S. Army had approved the new recruit for a Secret clearance.
John T. Booker Jr., who also goes by the name Mohammed Abdullah Hassan, was arrested Friday and charged with attempting to provide material support to the Islamic State, plotting to use a weapon of mass destruction, and planning to destroy property with an explosive.
Yet in March 2014, Booker was already being watched by the FBI, who determined he had no ability to carry out an attack, according to a ''Situational Information Report'' issued last year by the FBI's Kansas City division. Booker had in Feb. 2014 signed up to join the U.S. Army and had even been approved for a security clearance, the FBI document states.
Booker's plans to join the Army were derailed the next month by his deteriorating mental health.
''BOOKER voluntarily checked himself into a mental health facility for evaluation on 26 March 2014; Kansas City Division is in contact with the facility and will be apprised if BOOKER is deemed healthy enough to be released. BOOKER has not been charged with a crime at present. BOOKER does not have access to a vehicle or other form of transportation at this time, nor is there evidence he possess firearms,'' the report, issued March 30, 2014, stated.
What changed in the following year was not necessarily Booker's mental state, but the introduction of two FBI informants into his life.
It is unclear when Booker was released from the mental health institution, but in Oct. 2014 he met the first of two FBI informants. By the spring of 2015, Booker had been introduced to the second informant '-- and, according to the indictment unsealed Friday, the two informants provided the 20-year-old with the materials and support that led to his arrest on Friday on charges stemming from his alleged plans to carry out an attack against Fort Riley in support of the Islamic State.
There were early warning signs of Booker's interest in terrorism '-- and his mental instability. In the months prior to signing up for the U.S. Army '-- and being granted a secret-level clearance '-- Booker has posted a series of comments on social media, saying he wanted to ''wage jihad'' against America.
''I wanna be a martyr (shaheed)!!! YA, brothers and sisters,'' Booker said in a comment on YouTube five months before enlisting in the military.
Around the same time, months before being approved for a security clearance, Booker posted in the comments section of a YouTube video showing graphic video of American soldiers under fire in Iraq in 2008. ''I'm am Muslim. Muslims had no business in Iraq,'' Booker wrote.
On March 9, a month after he enlisted at the Kansas City recruiting station, Booker posted a series of photos of Osama bin Laden holding various weapons. ''Allahu Akbar J Sheikh Osama bin Laden and his army,'' reads a post by one photo.
On March 15, a post on Facebook expressed Booker's desire to die for his beliefs. ''I want to be with my lord so bad that I cry but I will miss you guys I am not going to lie,'' he wrote.
Those comments, and the initial FBI warning, were first written about by this reporter for FoxNews.com. An FBI spokesperson attempted to downplay the threat at the time.
''We have interviewed this individual,'' the spokeswoman told this reporter at the time. ''There is no imminent threat to public safety, nor should the public be concerned that this threat exists from an individual at large.''
Photo: FBI
Misprision of felony - Wikipedia, the free encyclopedia
Sat, 11 Apr 2015 22:20
Misprision of felony was an offence under the common law of England and was classified as a misdemeanour.[1] It consisted of failing to report knowledge of a felony to the appropriate authorities.
Exceptions were made for close family members of the felon.[citation needed]
A person was not obliged to disclose his knowledge of a felony where the disclosure would tend to incriminate him of that offence or another.[2]
With the development of the modern law, this crime has been discarded in many jurisdictions, and is generally only applied against persons placed in a special position of authority or responsibility. In this case, the offence of misfeasance in public office or malfeasance in public office may be considered instead. For example, corrections officers who stand idly by while drug trafficking occurs within the prison may be prosecuted for this crime.[citation needed]
It has been abolished in England and Wales,[3] in Northern Ireland,[4] in the Republic of Ireland,[5] and in New South Wales[6] and other Australian States and Territories, but has often been replaced by a statutory offence.
United States federal law[edit]"Misprision of felony" is still an offense under United States federal law after being codified in 1909 under 18 U.S.C. § 4:
Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.
This offense, however, requires active concealment of a known felony rather than merely failing to report it.[7]
The Federal misprision of felony statute is usually only used in prosecutions against defendants who have a special duty to report a crime, such as a government official.[8]
See also[edit]References[edit]^Sykes v. Director of Public Prosecutions [1962] A.C. 582^R v. King [1965] 1 All ER 1053^The Criminal Law Act 1967 (c.58), section 1^The Criminal Law Act (Northern Ireland) 1967 (c.18) (N.I.), section 1^The Criminal Law Act 1997 (No.14), section 3^The Crimes Act 1900, section 341 [1]^See United States v. Johnson, 546 F.2d 1225 (5th Cir. 1977) at 1227 ("The mere failure to report a felony is not sufficient to constitute a violation of 18 U.S.C.A. § 4."^Smith, Jeff (April 7, 2014). "Chris Christie Is Toast: Federal prosecutors have their teeth in the New Jersey governor's close associates. And they ain't letting go". Politico. Retrieved April 8, 2014. Other sources[edit]Curenton, The Past, Present, and Future of 18 U.S.C. Sec. 4: An Exploration of the Federal Misprision of Felony Statute, (2003) Vol. 55 Alabama Law Review, 183.U.S. Code Online via GPO Access (wais.access.gpo.gov) United States Code Title 18, Part I, Chapter I, Section 4Further reading[edit]For a discussion of the appellant's defence and the decision in Sykes above, see P.R.Glazebrook, Misprision of Felony - Shadow or Phantom, The American Journal of Legal History, Volume 8, No.3 (July 1964) pp. 189 '' 208, Temple University JSTORFor a general discussion of this offence from an American viewpoint, see William Lawrence Clark, A Treatise on the Law of Crimes, Hein, 1996, para. 439 pp. 679 '' 680 [2]
Fort Riley suicide bombing plot: Was an FBI sting operation necessary? (+video) - CSMonitor.com
Sun, 12 Apr 2015 01:05
USA/USA Update
(Read article summary)John T. Booker was arrested for attempting a suicide attack on Fort Riley military base. The actions were part of an extensive FBI sting operation, raising an ethical question of whether sting operations are helpful or counterproductive.
By Samantha Laine, Staff Writer / April 11, 2015
Kansas resident John T. Booker, 20, was charged Friday for planning a suicide attack on the Fort Riley military base on Friday.
Authorities arrested Mr. Booker, who also goes by the name Mohammed Abdullah Hassan, outside of the Army post as he attempted to arm a 1,000-pound bomb, according to prosecutors. He was not aware the bomb was inert, as the situation was part of an extensive FBI sting operation that resulted in Booker's arrest.
"The perimeter of Fort Riley was never penetrated, there was never any concern on our part that he would get onto the fort and, unbeknownst to him, the materials that were used to make up this bomb were inert," U.S. Attorney Barry Grissom said, reported NPR.
Is this an example of the FBI getting better at identifying radicalized American youth? Perhaps. But it also appears to be the case of a troubled individual, so open about his terrorist ambitions, that he becomes fodder for a sting operation, one the FBI describes as an effort to keep him "off the streets."
Booker is charged with three federal crimes, including attempting to use a weapon of mass destruction, attempting to damage property by means of an explosive and providing material support to a foreign terrorist organization. Another Topeka man, Alexander E. Blair, 28, was also charged for failure to report a felony. He was known to have similar radical views, and also allegedly provided funds to Booker to help cover the cost of the storage locker where the bomb was built, reported The New York Times.
''Over a period of months, he began doing and taking actions that were more than just mere talking,'' Mr. Grissom said, reported The New York Times. He added that the arrest ''reminds us that we in law enforcement have to remain vigilant.''
Booker's susceptibility to radical views first came to light in early 2014, when he was recruited to join the U.S. Army in Kansas City, Mo. He was scheduled to report to basic training in April. In March, he publicly posted to Facebook two entries, which stated: ''I will soon be leaving you forever so goodbye! I'm going to wage jihad and hopes that i die'' and ''Getting ready to be killed in jihad is a HUGE adrenaline rush!! I am so nervous. NOT because I'm scared to die but I am eager to meet my lord.''
After the second post, the FBI interviewed him after receiving a complaint. According to the complaint, Booker allegedly heard and waived his Miranda rights and said ''he enlisted in the United States Army with the intent to commit an insider attack against American soldiers like Major Nidal Hassan had done at Fort Hood, Texas.'' After detailing other possible jihad attacks, he was subsequently denied US military employment.
Seven months later, the FBI continued to keep tabs on the young man. Since October 2014, Booker engaged in conversation with a confidential FBI informant. According to the complaint, he repeatedly told the informant of his desire to go to the Middle East and join the self-declared Islamic State, ''but he didn't know anyone who could help him do so.''
Mid-November, the FBI informant told Booker he had a ''cousin'' who could get people overseas, referring to another FBI informant who later identified himself as ''a high ranking sheikh planning terrorist attacks in the United States.'' When asked what he would like to do, Booker responded: ''Anything. Anything you think is good. I will follow you.''
Booker repeatedly discussed his intentions to perform jihad with the two FBI informants in the following months, leading up to Friday's end when Booker attempted to detonate the inert bomb. Booker filmed a video of himself to be played after his death, during which he swears bay'ah, or allegiance, to IS leader Abu Bakr Al Baghdadi.
According to the complaint, the FBI informants provided a list of explosive materials to Booker, and also assembled the explosives at his request. Booker made it clear that he wished to detonate the explosion himself, so the FBI informants demonstrated how to arm the device.
Last summer, the Human Rights Watch and Columbia Law School's Human Rights Institute released a report detailing 27 federal terrorism cases from initiation to post-conviction. In some cases, individuals had no history of terrorist acts, and were considered to be "law-abiding citizens" before the initiation of sting operations. Andrea Prasow, deputy Washington director at Human Rights Watch and one of the authors of the report, said in a release:
Americans have been told that their government is keeping them safe by preventing and prosecuting terrorism inside the US . . . But take a closer look and you realize that many of these people would never have committed a crime if not for law enforcement encouraging, pressuring, and sometimes paying them to commit terrorist acts.
A case similar to Booker's arose in 2012 when a Chicago suburban teen, Adel Daoud, was driven by FBI informants to a downtown location to detonate a bomb. At the time, he was not part of a terrorist organization, nor did was any group attempting to recruit him. Al Jazeera reported that Chicago's Muslim communities were shocked by the arrest, and questioned the FBI's tactics.
"For many, the first question was why. Why target as a terrorist-in-waiting a teen who was plainly incapable of planning and conducting a terrorist attack?" Al Jazeera reported. "The second question was one of fear: Will my child be the FBI's next target?"
Imam Omar Hazim of the Islamic Center of Topeka said he began counseling Booker after two FBI agents brought him to his attention last year. The FBI told Hazim that Booker suffered bipolar disorder, and that they hoped counseling would help change his radical beliefs.
Hazim said that recently, Booker had gone off his medication because ''he didn't like the way it made him feel and it was expensive'' and that he acted strangely in the days leading up to the arrest. Hazim later he learned of the sting operation in an effort to get Booker ''off the streets.'' He said:
''I think the two FBI agents set him up, because they felt at that point someone else might have done the same thing and put a real bomb in his hands.''
This article contains reporting from The Associated Press.
LGBBTQQIAAP
Note from Tranny Lucille
Girl, you're such a viper. always pretending to be on LGBT side. here's how you roll:
"john, i'm a bi-curious, as you know, but my flower brothers and lezzie sisters SHOULD ALL BE ARRESTED"
"so this guy was arrested because he killed a bunch of homos. ahhh... gay brothers and sisters, YOU'RE BEING MANIPULATED, I'M DISAPPOINTED"
You say you're bi-curious just to license your hate speech. The truth is you're not gay nor even a yestergay. You're actually a hetty, a misogynist, a homophobic and a republican. You can deny that, but just listen to yourself.
SHAME ON YOU CURRY
Counter note from Brian the Gay Crusader
Lucille:
First and foremost, Adam is not only bi-curious but he is an unwavering ally of the LGBT community-- he is not like so many people who simply call themselves supporters of LGBT equality because it's en vogue; Adam chooses to support equality for all and uses his platform to both advocate for LGBT rights as well as share and deconstruct misguided/not well thought out actions by LGBT NGOs or highlight various ways that the media & Hollywood exploit LGBT issues. It is a true ally that will advocate for equality and also shine a light on issues that impact the LGBT community that the mainstream media does not report; Adam is a true ally.
[I could mention that Adam's daughter is a lesbian and that my first communication with Adam was on a day when he was in the Netherlands where he and his wife were visiting Adam’s daughter and her girlfriend. What did they do all together as a family that day? They participated in the Amsterdam Gay Pride Parade as part of the OUT TV float.]
Most importantly I am lucky to call Adam a friend; if he lived the life of "a misogynist, a homophobic and a republican" I can promise you that we would not be friends. Is he often sarcastic and does he sometimes say memorable things in an effort to be funny? Absolutely. Are those statements rooted in anti-gay or transphobic beliefs or feelings? Absolutely not.
As someone whose professional career path has primarily focused on diversity and inclusion I find it quite bizarre that in the face of comments that you perceive as offensive, the solution is no longer to try to foster a dialogue in order to address the comments that offended you, instead the go-to response is anger, hate and shaming the person for your perception of his comments. The diverse spectrum of gender identification, racial identification, religious beliefs, sexual orientation and economic status and the biases/issues/ignorance that come with each will never be resolved to the point that we love each other as humans if our response to issues is to attack that person because the outcome will only be to move us further away from complete inclusion.
I cannot stress enough that if Adam was the slightest homophobic or transphobic, he would not be someone I call a friend.
I hope that moving forward instead of attacking someone whose comments you perceived to be offensive to you, you might try to start a dialogue with that person by sharing your issue in a manner that you'd hope someone would reach out to you if your words were perceived as offensive by that individual.
All my best,
Brian
Chiner$
Presidential Determination -- Proposed Agreement for Cooperation Between the Government of the United States of America and the Government of the People's Republic of China Concerning Peaceful Uses of Nuclear Energy
Sun, 12 Apr 2015 14:26
The White House
Office of the Press Secretary
For Immediate Release
April 10, 2015
SUBJECT: Presidential Determination on the Proposed
Agreement for Cooperation Between the Government
of the United States of America and the
Government of the People's Republic of China
Concerning Peaceful Uses of Nuclear Energy
I have considered the proposed Agreement for Cooperation Between the Government of the United States of America and the Government of the People's Republic of China Concerning Peaceful Uses of Nuclear Energy (the "Agreement"), along with the views, recommendations, and statements of the interested departments and agencies.
I have determined that the performance of the Agreement will promote, and will not constitute an unreasonable risk to, the common defense and security. Pursuant to section 123 b. of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2153(b)), I hereby approve the proposed Agreement and authorize the Secretary of State to arrange for its execution.
The Secretary of State is authorized to publish this determination in the Federal Register.
BARACK OBAMA
China to Build Pipeline From Iran to Pakistan - WSJ
Thu, 09 Apr 2015 12:41
ISLAMABAD'--China will build a pipeline to bring natural gas from Iran to Pakistan to help address Pakistan's acute energy shortage, under a deal to be signed during the Chinese president's visit to Islamabad this month, Pakistani officials said.
The arrival of President Xi Jinping is expected to showcase China's commitment to infrastructure development in ally Pakistan, at a time when few other countries are willing to make major...
China's Great Cannon
Fri, 10 Apr 2015 18:07
This post describes our analysis of China's ''Great Cannon,'' our term for an attack tool that we identify as separate from, but co-located with, the Great Firewall of China. The first known usage of the Great Cannon is in the recent large-scale novel DDoS attack on both GitHub and servers used by GreatFire.org.
Authors: Bill Marczak1,2,3 (Lead), Nicholas Weaver2,3 (Lead), Jakub Dalek,1 Roya Ensafi,4 David Fifield,2 Sarah McKune,1 Arn Rey, John Scott-Railton,1 Ronald Deibert,1 Vern Paxson.2,3
Affiliations: (1) Citizen Lab, Munk School of Global Affairs, University of Toronto; (2) International Computer Science Institute; (3) University of California, Berkeley; (4) Princeton University
Section 1: Introduction, Key FindingsOn March 16, GreatFire.org observed that servers they had rented to make blocked websites accessible in China were being targeted by a Distributed Denial of Service (DDoS) attack. On March 26, two GitHub pages run by GreatFire.org also came under the same type of attack. Both attacks appear targeted at services designed to circumvent Chinese censorship. A report released by GreatFire.org fingered malicious Javascript returned by Baidu servers as the source of the attack.1 Baidu denied that their servers were compromised.2
Several previous technical reports3 have suggested that the Great Firewall of China orchestrated these attacks by injecting malicious Javascript into Baidu connections. This post describes our analysis of the attack, which we were able to observe until April 8, 2015.
We show that, while the attack infrastructure is co-located with the Great Firewall, the attack was carried out by a separate offensive system, with different capabilities and design, that we term the ''Great Cannon.'' The Great Cannon is not simply an extension of the Great Firewall, but a distinct attack tool that hijacks traffic to (or presumably from) individual IP addresses, and can arbitrarily replace unencrypted content as a man-in-the-middle.
The operational deployment of the Great Cannon represents a significant escalation in state-level information control: the normalization of widespread use of an attack tool to enforce censorship by weaponizing users. Specifically, the Cannon manipulates the traffic of ''bystander'' systems outside China, silently programming their browsers to create a massive DDoS attack. While employed for a highly visible attack in this case, the Great Cannon clearly has the capability for use in a manner similar to the NSA's QUANTUM system,4 affording China the opportunity to deliver exploits targeting any foreign computer that communicates with any China-based website not fully utilizing HTTPS.
Report StructureWe organize our Report as follows:
Section 2 locates and characterizes the Great Cannon as a separate system;Section 3 analyzes DDoS logs and characterizes the distribution of affected systems;Section 4 presents our attribution of the Great Cannon to the Government of China;Section 5 addresses the policy context and implications;Section 6 addresses the possibility of using the Great Cannon for targeted exploitation of individual users.
Section 2: The Firewall & The Cannon: Separate Systems, Significant SimilaritiesFigure 1. Simplified logical topology of the Great Cannon and Great Firewall
In general, a firewall serves as an in-path barrier between two networks: all traffic between the networks must flow through the firewall. In contrast, an on-path system like the Chinese ''Great Firewall'' (GFW) sits off to the side: it eavesdrops on traffic between China and the rest of the world (TAP in Figure 1), and terminates requests for banned content (for example, upon seeing a request for ''http://www.google.com/?falun'',5 regardless of actual destination server) by injecting a series of forged TCP Reset (RST) packets that tell both the requester and the destination to stop communicating (INJECT RST in Figure 1).6 On-path systems have architectural advantages for censorship, but are less flexible and stealthy than in-path systems as attack tools, because while they can inject additional packets, they cannot prevent in-flight packets (packets that have already been sent) from reaching their destination.7 Thus, one generally can identify the presence of an on-path system by observing anomalies resulting from the presence of both injected and legitimate traffic.8
The GFW keeps track of connections and reassembles the packets (''TCP bytestream reassembly'') to determine if it should block traffic. This reassembly process requires additional computational resources, as opposed to considering each packet in isolation, but allows better accuracy in blocking. While a web request often fits within a single packet, web replies may be split across several packets, and the GFW needs to reassemble these packets to understand whether a web reply contains banned content.
On any given physical link (e.g., a fiber optic cable), the GFW runs its reassembly and censorship logic in multiple parallel processes9 (perhaps running on a cluster of many different computers). Each process handles a subset of the link's connections, with all packets on a connection going to the same process. This load-balanced architecture reflects a common design decision when a physical link carries more traffic than a single computer can track. Each GFW process also exhibits a highly distinctive side-channel '-- it maintains a counter, and numbers the forged TCP Reset packets it injects (via the value of the IP TTL field).
The Great Cannon (GC) differs from the GFW: as we will show, the GC is an in-path system, capable of not only injecting traffic but also directly suppressing traffic, acting as a full ''man-in-the-middle'' for targeted flows. The GC does not actively examine all traffic on the link, but only intercepts traffic to (or presumably from) a set of targeted addresses. It is plausible that this reduction of the full traffic stream to just a (likely small) set of addresses significantly aids with enabling the system to keep up with the very high volume of traffic: the GC's full processing pipeline only has to operate on the much smaller stream of traffic to or from the targeted addresses. In addition, in contrast to the GFW, the GC only examines individual packets in determining whether to take action, which avoids the computational costs of TCP bytestream reassembly. The GC also maintains a flow cache of connections that it uses to ignore recent connections it has deemed no longer requiring examination.
The GC however also shares several features with the GFW. Like the GFW, the GC is also a multi-process cluster, with different source IP addresses handled by distinct processes. The packets injected by the GC also have the same peculiar TTL side-channel as those injected by the GFW, suggesting that both the GFW and the GC likely share some common code. Taken together, this suggests that although the GC and GFW are independent systems with different functionality, there are significant structural relationships between the two.
In the attack on GitHub and GreatFire.org, the GC intercepted traffic sent to Baidu infrastructure servers that host commonly used analytics, social, or advertising scripts. If the GC saw a request for certain Javascript files on one of these servers, it appeared to probabilistically take one of two actions: it either passed the request onto Baidu's servers unmolested (roughly 98.25% of the time), or it dropped the request before it reached Baidu and instead sent a malicious script back to the requesting user (roughly 1.75% of the time). In this case, the requesting user is an individual outside China browsing a website making use of a Baidu infrastructure server (e.g., a website with ads served by Baidu's ad network). The malicious script enlisted the requesting user as an unwitting participant in the DDoS attack against GreatFire.org and GitHub.
Localizing the CannonThe GFW continues to operate as normal: on-path and statefullyWe began our investigation by confirming the continued normal operation of the GFW's censorship features. We did so employing measurements between our test system outside of China and a Baidu server that we observed returning the malicious Javascript. We sent the Baidu server a request that the GFW would process as a query for ''http://www.google.com/?falun'', a URL long known10 to trigger the GFW to inject forged TCP Resets to terminate the connection. This packet capture shows the results of our experiment, which confirmed that the normal, well-understood operation of the GFW continues. Note that the capture includes both the injected TCP Reset and, later, the legitimate response (an HTTP 403 reply) from the Baidu server. This occurs because the GFW operates as an on-path system, and, as discussed earlier, on-path systems cannot prevent in-flight packets from reaching their destination.
Figure 2. How the Great Cannon was deployed in the GitHub and GreatFire.org attacks
Localizing the GFWWe then localized where (with respect to our measurement system) in the network topology the GFW operates, as follows. For a given measurement packet, we can control how far into the network it transits from our measurement system to its destination by controlling the packet's TTL value. The TTL value determines after how many intermediate hops a packet will be discarded by the Internet's internal routers. We sent the ''Falun'' queries from our test system to the Baidu server with TTL values increasing from 1 on up. We observed that the GFW's TCP Reset injection only occurred when we sent packets with TTL values >= 18, suggesting that the GFW acts on traffic flowing between the 17th and 18th hop along the path from our test system to the Baidu server (which was itself 24 hops away from our test system). This packet capture shows our localization results.11
The GC operates as a separate, in-path systemAs noted previously, our traces of GFW operation showed both the injected TCP Reset, as well as the legitimate server reply. In contrast, no legitimate server reply accompanied the injected malicious reply from the GC. We ran further testing, where we retransmitted our request to Baidu over the same connection, and with the same sequence numbers, after we received a malicious response. We observed Baidu responding as normal to the retransmitted request. Thus, we conclude12that the GCdroppedour request before it reached Baidu, a capability not present in the GFW.13
We also checked whether the GFW and GC might share the same injector device,14 but found no evidence that they do. In particular, from a given TCP source port, we sent one request designed to trigger GC injection, followed by a request designed to trigger GFW injection. We repeated the experiment from a number of source ports. While packets injected by both the GFW and GC exhibited a similar (peculiar) TTL side-channel indicative of shared code between the two systems, we found no apparent correlation between the GFW and GC TTL values themselves.
The GC appears to be co-located with the GFWWe used the same TTL technique to localize the GC on the path between our test system and the Baidu server. We found that for our path, the GC acted on traffic between hop 17 and hop 18, the same link we observed as responsible for the GFW. We also observed that unlike the GFW, we could trigger the GC using ''naked'' requests (i.e., requests sent in isolation, with no previous TCP SYN as required for standard communication). Acting on ''naked'' requests implies that the GC's content analysis is more primitive (and easily manipulated), but does offer significant performance advantages, as the GC no longer needs to maintain complex state concerning connection status and TCP bytestream reassembly.
We also checked two separate servers in China whose traffic the GC targets to observe whether the GC existed along with the Great Firewall on multiple network paths. From our measurement system outside of China, we examined the path to both 115.239.210.141 and 123.125.65.120. For 115.239.210.141, the GFW and the GC both exist between hop 12 and 13, on the link between 144.232.12.211 and 202.97.33.37, as the traffic enters China Telecom. For 123.125.65.120, the GFW and GC both exist between hop 17 and 18, on the link between 219.158.101.61 and 219.158.101.49, belonging to China Unicom. A previous report by Robert Graham used the same TTL technique to conclude that on one link, the GC was located ''inside China Unicom infrastructure.''15
The GC is currently aimed only at specific destination IP addressesWhen we probed an IP address adjacent to the Baidu server (123.125.65.121), the GC ignored the requests completely, although the GFW acted on censorable requests to this host.
Unlike the GFW, the GC only acts on the first data packet of a connectionFor a given source IP address and port, the GC only examines the first data packet sent when deciding whether to inject a reply. To avoid examining subsequent packets requires remembering which connections it has examined in a flow cache. Unlike the GFW, the GC does not reassemble packets, a significant implementation difference. In addition, the GC will process invalid HTTP requests, while the GFW will not, also indicating differing implementations.
We confirmed these behaviors by sending a number of probes to the Baidu server, requesting resources that trigger the GC's injection. Each probe had a different source port. We sent 500 probes, each with the request split across three packets (so 1,500 packets total). The GC ignored each probe. We then sent 500 probes where the first packet's data is an invalid HTTP request, and the second packet's data is a complete, valid request for a targeted resource. The GC ignored each probe. We then sent a final 500 single-packet probes, each containing a complete, valid request for a targeted resource, to confirm normal GC operation. As expected, the GC injected malicious content in some cases, seemingly based on its probabilistic decision-making process.
How big is the GC flow cache?We attempted to completely fill the GC flow cache by sending packets to the Baidu server with different source IP addresses and ports, while probing to see whether the entries that we previously added had now expired. Our attempt suggests that at least in some cases, the GC flow cache between our test system and the Baidu server supports up to around 16,000 entries for a single sending IP address.
Unlike the GFW, the GC appears to act probabilisticallyCensorship systems generally operate in a deterministic fashion: they aim to block all content that matches the target criteria. The GC, on the other hand '-- at least for this particular attack '-- appears to act probabilistically, and ignores most of the traffic it could act on. In one test, it completely ignored all traffic from one of four measurement IP addresses, and on the three other measurement IP addresses it only responded to 526 requests out of an initial 30,000 from the three (1.75%).
The cache capacity test also provides evidence that the GC's probabilistic choice occurs on the decision to act on a particular flow, and not as some sort of pre-filter for reducing analysis load. When we succeeded in completely filling the flow cache, subsequently injected packets occurred for different source ports than in the initial test. If the GC only intercepted a subset of flows to the target IP address, we would expect subsequent injections to appear for the same flows, since most schemes to probabilistically select flows for interception (such as hashing the connection 4-tuple) would select the same set of flows the second time around.
Does the GC have a load-balanced architecture?We determined that the GC uses a separate flow cache for different source IP addresses, and that packets injected from different source IP addresses have distinct TTL side-channels. This finding suggests a load-balanced architecture similar to the GFW, where packets are routed to GC nodes based on source IP address. We then sent traffic alternating from four measurement IP addresses in an attempt to fill a 16,000 entry cache. This attempt did not manage to fill the cache, suggesting that the GC not only processed the different source IP addresses with different injection elements, but did so using different flow caches. As stated before, one of the four source IP addresses never received any injected replies.
Section 3: Analysis of the DDoS Logs from the attack against GreatFireThe staff of GreatFire.org provided the authors with server logs covering the period of March 18 to 28.16 (A report previously published by Great Fire uses a different sample.17) This period appears to capture the end of the DDoS attack on GreatFire.org's services, as shown by the size of server log files over this period:
To keep our analysis tractable, we examined a sample of the data from March 18th 11:00 GMT to March 19th 7:00 GMT, as seen from two of the three most commonly seen backend servers. For each hour, we selected 30MB of compressed logs for each server.18 The total sample includes 16,611,840 web requests, with 13,183 unique source IP addresses. We used the MaxMind GeoIP2 Lite database19 from March 3rd, 2015 to assign a country of origin to each source IP address. For any IP address that did not result in a definite geolocation using this tool (31 addresses), we looked up the address manually using the iplocation.net service.
The figure below summarizes the top countries of origin, with China added for comparison.
Figure 3. Number of Unique IP addresses seen in DDoS log sample showing the top 5 countries/regions, with Chinese traffic included for comparison.
Note that 8,827 (66.9%) of the IP addresses originate from Taiwan and Hong Kong, two regions where Chinese is the official language. China, however, accounted for only 18 requests. This is consistent with malicious code injected into China-hosted websites at the border of the Chinese Internet.
To determine which websites have their responses altered by the injection of malicious code, we extracted the domain names of the 25 most frequently seen referrers in our dataset,20 finding that these domains account for 55% of the total requests in the sample.
Figure 4. Top 25 referrers found in the DDoS logs, grouped by domain. The top bar reflects domains directly in the baidu.com DNS space. Manual verification confirms that all top 25 referrers use Baidu services such as advertising or analytics.
The most commonly seen domain is pos.baidu.com (37.7% of total requests in the sample), a part of Baidu's ad network. Many non-Baidu sites display ads served through Baidu's ad network, indicating that visitors to non-Baidu sites displaying ads also became targeted.21
We examined the top 25 domains, and linked each one to Baidu: in each case, the site is either a Baidu property or uses Baidu analytics, advertisements, or static resources.22 This finding indicates that Baidu was a major injection target for this attack. According to Alexa statistics, Baidu itself is the fourth-most visited site globally, the highest ranking China-based site on the global list,23 and has received an estimated 4.99 million unique visitors from the US alone in the past 30 days.24
We speculate that Baidu was chosen as an injection target because it is a simple way to target many users.
Section 4: Attributing the Great Cannon to the Chinese GovernmentWe believe there is compelling evidence that the Chinese government operates the GC. In recent public statements, China has deflected questions regarding whether they are behind the attack, instead emphasizing that China is often itself a victim of cyber attacks.25
Where is the GC Located?We tested two international Internet links into China belonging to two different Chinese ISPs, and found that in both cases the GC was co-located with the GFW. This co-location across different ISPs strongly suggests a governmental actor.
Who built the Great Cannon?That the GFW and GC have the same type of TTL side-channel suggests that they share some source code. We are unaware of any public software library for crafting packets that introduces this type of TTL side-channel.
What is the Great Cannon's Function?Our observations indicate that the GC's design does not reflect technology well-suited for performing traffic censorship. Its operation only examines the first data packet of a given connection, which provides a weak censorship mechanism compared to the GFW. More generally, the GC's design does not, in practice, enable it to censor any traffic not already censorable by the GFW. Thus, the evidence indicates that the GC's role is to inject traffic under specific targeted circumstances, not to censor traffic.
Who is the Great Cannon attacking?The DDoS attack launched by the GC using ''bystander'' machines directly aligns with known political concerns of the Chinese government. The Cyberspace Administration of China has previously referred to GreatFire as a ''foreign anti-Chinese organization'' (åƒå¤–反华ç>>).26 The particular GreatFire service targeted in this attack provides proxies to bypass the GFW using encrypted connections to Amazon's CloudFront cloud service.
GreatFire also hosts two GitHub repositories, https://gitub.com/greatfire and https://github.com/cn-nytimes, that provide technology for users who wish to circumvent Chinese government censorship. The attack on GitHub specifically targeted these repositories, possibly in an attempt to compel GitHub to remove these resources. GitHub encrypts all traffic using TLS, preventing a censor from only blocking access to specific GitHub pages. In the past, China attempted to block Github, but the block was lifted within two days, following significant negative reaction from local programmers.27
Section 5: Policy Context and ImplicationsThis section describes some policy implications of deploying the Great Cannon, addresses the impact of targeting Baidu traffic specifically, and discusses the Chinese authorities that may be involved in operation of the GC.
Implications of the GC for Chinese PolicyDeploying the Great Cannon is a major shift in tactics, and has a highly visible impact. It is likely that this attack, with its potential for political backlash,28 would require the approval of high-level authorities within the Chinese government. These authorities may include the State Internet Information Office (SIIO),29 which is responsible for Internet censorship. It is also possible that the top body for cybersecurity coordination in China, the Cybersecurity and Informatization Leading Group (CILG),30 would have been involved. The CILG is chaired by Xi Jinping and includes as members senior leaders from across the government; its administrative office is housed within the SIIO.31
The government's reasoning for deploying the GC here is unclear, but it may wish to confront the threat presented to the Communist Party of China's (CPC) ideological control by the ''collateral freedom'' strategy advanced by GreatFire.org32 and others. The attack was exceptionally costly to GreatFire, according to their public statements,33 as well as disruptive to the companies that hosted GreatFire content. Such a disruption could be both an attempt to block the operations of an undesirable resource, and a signal sent to other organizations of the potential price tag for this kind of activity. Deployment of the GC may also reflect a desire to counter what the Chinese government perceives as US hegemony in cyberspace.
This approach would be consistent with the CPC's paramount focus on protecting ''domestic stability'' (and its own authority) against entities it has identified as ''foreign hostile forces,'' including not only governments but also Western media outlets (such as the New York Times) and NGOs or other civil society actors (such as GreatFire.org).34 According to such a world view, the collateral freedom strategy is a provocative, hostile act that threatens China's security.
Implications of Using Traffic to Baidu ServicesThe incorporation of Baidu in this attack suggests that the Chinese authorities are willing to pursue domestic stability and security aims at the expense of other goals, including fostering economic growth in the tech sector. Selecting Baidu's international traffic may appear counterproductive given the importance of Baidu to the Chinese economy: the company enjoys stature as one of China's ''big three'' Internet firms, alongside Alibaba and Tencent,35 and currently ranks as the top site in China.36 While its shares came under pressure after the February release of its Q4 and fiscal year 2014 reports,37 its total revenue in 2014 was USD $7.906 billion, with online marketing revenues for that period valued at USD $7.816 billion.38
''Service interruptions could reduce our revenues and profits and damage our brand if our systems are perceived to be unreliable.''39
Baidu has denied involvement in the attack and asserted its internal security was not compromised.40 Yet the targeting of international visitors trying to reach sites that are Baidu properties, or that use Baidu analytics, advertisements, or static resources, could undermine the company's reputation and its appeal to overseas users and advertisers.
Baidu writes in its SEC filings that it was the target of legal action in the United States in 201141 for complying with Chinese censorship. Baidu explicitly notes that cooperation and coordination with Chinese censorship authorities could be costly in terms of brand image, profit, and stockholder confidence.
''our compliance with PRC regulations governing internet access and distribution of news and other information over the internet may subject us to negative publicity or even legal actions outside of China.''42
Moreover, exploiting Baidu's international reach as a means for conducting digital attacks belies the government's recent commitment to enhance the global presence of Internet companies. At the meeting of the National People's Congress on March 5, 2015, Premier Li Keqiang (who is also Vice-Chair of the CILG) announced:
We will develop the ''Internet Plus'' action plan to integrate the mobile Internet, cloud computing, big data, and the Internet of Things with modern manufacturing, to encourage the healthy development of e-commerce, industrial networks, and Internet banking, and to guide Internet-based companies to increase their presence in the international market.43
This goal '' which closely echoes that contained in a draft declaration presented (but not passed) at the November 2014 Wuzhen World Internet Conference44 '' may not come to fruition if Chinese domestic companies appear unreliable, their business objectives secondary to other objectives of the Chinese Government.
Chinese authorities may, however, be betting that their use of Baidu traffic to mount this DDoS attack will ultimately be perceived as an isolated occurrence, a sort of ''force majeure,'' with limited impact on Baidu's long-term economic prospects '' particularly given Baidu's apparent status as unwitting victim and its strong market position.
Additionally, Baidu's CEO Robin Li is a member of the Chinese People's Political Consultative Conference45 and well-positioned for lucrative government contracts going forward '-- such as his artificial intelligence project ''China Brain,'' for which he has sought military support.46 He may have little personal incentive (let alone opportunity, given the existing legal and regulatory framework applicable to Internet companies in China47) to challenge this action by the government.
Thinking About Authorities Who May Be Responsible for Implementing The Great CannonEven for the GFW, it is difficult to pinpoint the precise authorities behind its deployment, or its operators and origins. This makes understanding the origins of the GC equally challenging. However, some clues are available. For example, the shared source code and co-location between the GFW and GC suggest that the GC could have been developed within the same institutional framework as the GFW. We might therefore draw further insight into the GC by assessing what we know about the GFW.
Some reports characterize the GFW as an element of China's ''Golden Shield'' project,48 under the authority of the Ministry of Public Security. However, unverified insider information 'leaked' online suggests that the GFW was developed within a separate entity: the ''National Computer Network and Information Security Management Center'' (国家è®ç®—æ'ºç½‘ç>>'与ä息安全ç®ç†ä¸­åƒ) (hereafter, ''the Center'').49 Little is publicly known about the Center. It appears to bear close relationship50 to the National Computer Network Emergency Response Technical Team/Coordination Center of China (CNCERT/CC) run by the Ministry of Industry and Information Technology (MIIT) '-- indeed, the listed address for CNCERT/CC is the same as that of the Center as indicated on its patent applications '-- and the former National Network and Information Security Coordination Team,51 a subcommittee of the State Informatization Leading Group subsumed by the CILG in 2014.52 Notably, ''MIIT also regulates China's six Internet service providers (ISPs), which in turn are expected to monitor and filter content on their networks according to censorship guidelines established by the State Council Information Office and the SIIO.''53 Those ISPs include China Telecom and China Unicom, on the links of which we co-located the GFW and GC (see above).
It is unknown whether the GFW and/or the GC are in fact maintained (or may have been developed in whole or in part) by the National Computer Network and Information Security Management Center. However, patent applications filed by this entity, taken together, appear to indicate a mandate for large scale network surveillance, filtering, and defense. The Center has filed nearly 100 patent applications,54 for designs such as ''Method for detecting unexpected hot topics in Chinese microblogs;'' ''Method and system for recognizing Tibetan dialects;'' ''Website classifying method;'' ''Method and system for intelligent monitoring and analyzing under cloud computing;'' ''Method and device for managing global indexes of mass structured log data;'' ''Method, device and system for traffic monitoring and switching;'' ''Image searching/matching method and system for the same;'' and ''Internet basic information management system'' (this last ''comprises a national-level management sub-system, a provincial management sub-system and an enterprise management sub-system'' that ''can perform effective supervision on the Internet basic information throughout the country''). Moreover, according to state media, during the time of the GFW's development the so-called ''father of the Great Firewall,'' Fang Binxing, was employed at CNCERT/CC,55 an entity that appears closely tied to the Center.56 Fang is likewise listed as an inventor on a 2008 patent application by the Center, indicating some collaboration with the Center prior to that point.
While we cannot determine the exact role played by the Center, the patent documentation and the Center itself require further research and analysis to determine whether they are relevant to operation of the GC, or present other human rights-related concerns.
Section 6: Concluding Remarks: The Capability for Targeted Exploitation by ChinaWe conclude with some remarks about the precedent set by China in the use of the GC and outline further implications for targeted exploitation.
The attack launched by the Great Cannon appears relatively obvious and coarse: a denial-of-service attack on services objectionable to the Chinese government. Yet the attack itself indicates a far more significant capability: an ability to ''exploit by IP address''. This possibility, not yet observed but a feature of its architecture, represents a potent cyberattack capability.
A technically simple change in the Great Cannon's configuration, switching to operating on trafficfroma specific IP address rather thantoa specific address, would allow its operator to deliver malware to targeted individuals who communicates with any Chinese server not employing cryptographic protections. The GC operator first needs to discover the target's IP address and identify a suitable exploit. The operator then tasks the GC to intercept traffic from the target's IP address, and replace certain responses with malicious content. If the target ever made a single request to a server inside China not employing encryption (e.g., Baidu's ad network), the GC could deliver a malicious payload to the target. A target might not necessarily realize that their computer was communicating with a Chinese server, as a non-Chinese website located outside China could (for example) serve ads ultimately sourced from Chinese servers.
Since the GC operates as a full man-in-the-middle, it would also be straightforward to have it intercept unencrypted email to or from a target IP address and undetectably replace any legitimate attachments with malicious payloads, manipulating email sent from China to outside destinations. Even email transmission protected by standard encryption (STARTTLS) can be undermined because the GC is in a position to launch a ''downgrade'' attack, steering the transmission to only use legacy, unencrypted communication.
Our findings in China add another documented case to at least two other known instances of governments tampering with unencrypted Internet traffic to control information or launch attacks '-- the other two being the use of QUANTUM by the US NSA and UK's GCHQ. In addition, product literature from two companies, FinFisher and Hacking Team, indicate that they sell similar ''attack from the Internet'' tools to governments around the world.57 These latest findings emphasize the urgency of replacing legacy web protocols, like HTTP, with their cryptographically strong versions, like HTTPS.
We remain puzzled as to why the GC's operator chose to first employ its capabilities in such a publicly visible fashion. Conducting such a widespread attack clearly demonstrates the weaponization of the Chinese Internet to co-opt arbitrary computers across the web and outside of China to achieve China's policy ends. The repurposing of the devices of unwitting users in foreign jurisdictions for covert attacks in the interests of one country's national priorities is a dangerous precedent '-- contrary to international norms and in violation of widespread domestic laws prohibiting the unauthorized use of computing and networked systems.
AcknowledgementsSpecial thanks to: Adam Senft (Citizen Lab) and Paul Pearce (UC Berkeley, ICSI).
We wish to acknowledge GreatFire for making their logs available to us for analysis.
We also express our deep gratitude to several individuals, anonymous or pseudonymous at their request, including ''Jack B,'' who aided us in understanding elements of the attack in the early days, and others who helped us formulate and develop this report.
Footnotes1 Using Baidu ç¾åº... to steer millions of computers to launch denial of service attacks,'' Anonymous author, March 25, 2015 (https://drive.google.com/file/d/0ByrxblDXR_yqeUNZYU5WcjFCbXM/view?pli=1)2http://www.theverge.com/2015/3/27/8299555/github-china-ddos-censorship-great-firewall3Appendix C: Related Technical Reports4http://www.wired.com/2014/03/quantum/5 As discussed further below, this specific URL consistently triggers GFW responses, even though if actually sent to www.google.com it simply returns the Google home page.6 See https://www.cs.unm.edu/~crandall/concept_doppler_ccs07.pdf for a description of the GFW's general operation using injected Reset packets.7 Although, the GFW does send injected RSTs to both the requester and destination, these RSTs may arrive too late to suppress transmission of some subsequent packets.8 See http://www.icsi.berkeley.edu/pubs/networking/ndss09-resets.pdf for a description of how to detect injected RST packets. The same techniques apply to detecting injected data packets.9 For information on both the parallel nature and the TTL sidechannel present in the GFW, see https://www.usenix.org/system/files/conference/foci14/foci14-anonymous.pdf10https://www.cs.unm.edu/~crandall/concept_doppler_ccs07.pdf11 The packet capture also confirms the stateful nature of the GFW's content analysis: it does not inject a TCP Reset unless it first observes a TCP SYN and an ACK for the SYN/ACK for the connection.12 If the GC did not drop requests sent to Baidu, then Baidu would have received our first request (which the GC responded to), and would have ignored our subsequent, duplicate request, as dictated by the TCP protocol. We verified that when the GC did not inject a response, Baidu did indeed ignore the duplicate request.13 Technically complex situations exist in which an on-path system like the GFW could conceivably prevent the appearance of a response from Baidu by disrupting session initiation. We conducted extensive measurements assessing this possibility. We omit those results from this report because the ''retransmission'' measurement discussed above definitively rules out that possibility, rendering the measurements moot.14 Analogous systems to the GC, like QUANTUM, make the architectural decision of having the injector as a distinct device from the rest of the system.15http://blog.erratasec.com/2015/04/pin-pointing-chinas-attack-against.html16 1.1TB, compressed. Note that the logs include both malicious and non-malicious traffic17https://drive.google.com/file/d/0ByrxblDXR_yqeUNZYU5WcjFCbXM/view?pli=118 Files were randomly selected amongst a list of files that were near 30MB. This size was selected because it was largest file size that was present in all timestamp hours we focused on.19http://dev.maxmind.com/geoip/legacy/geolite/20 Note that the malicious requests are being generated by Javascript. When a script makes a web request, the web browser sets the ''Referer'' header on the request to the URL of the page that loaded the script.21 It is typical for web advertisements to be displayed in iframes. This causes the ''Referer'' header to report the advertisement service, not the hosting page.22 See Appendix A.23 Alexa, ''The top 500 sites on the web,'' http://www.alexa.com/topsites (accessed April 8, 2015).24 Alexa, ''Site overview: baidu.com,'' http://www.alexa.com/siteinfo/baidu.com (accessed April 8, 2015).25 Ministry of Foreign Affairs of the People's Republic of China, ''Foreign Ministry Spokesperson Hua Chunying's Regular Press Conference,'' March 30, 2015, http://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/2511_665403/t1250354.shtml.26http://www.cac.gov.cn/2015-01/22/c_1114097853.htm27http://www.computerworld.com/article/2493478/internet/github-unblocked-in-china-after-former-google-head-slams-its-censorship.html28 Particularly after the Snowden disclosures, and the public / state outcry associated with the NSA's QUANTUM system and other programs, the Chinese government would presumably be aware of the significant international political ramifications of a decision to use the GC to target overseas entities, and escalate the matter accordingly.29 Note: also referred to as the Cyberspace Administration of China. ''China sets up State Internet information office,'' Xinhua, May 4, 2011, at http://www.chinadaily.com.cn/china/2011-05/04/content_12440782.htm.30 See Jon R. Lindsay, ''Introduction''China and Cybersecurity: Controversy and Context,'' in China and Cybersecurity: Espionage, Strategy, and Politics in the Digital Domain, ed. Jon R. Lindsay et al. [New York: Oxford University Press, 2015], 13-14; Adam Segal, ''China's New Small Leading Group on Cybersecurity and Internet Management,'' Council on Foreign Relations: Asia Unbound, February 27, 2014, http://blogs.cfr.org/asia/2014/02/27/chinas-new-small-leading-group-on-cybersecurity-and-internet-management/.31 For discussion and a diagram of institutions involved in China's national cybersecurity system, see Jon R. Lindsay, ''Introduction''China and Cybersecurity: Controversy and Context,'' in China and Cybersecurity: Espionage, Strategy, and Politics in the Digital Domain, ed. Jon R. Lindsay et al. [New York: Oxford University Press, 2015], 6-15.32 Charlie, ''Collateral Freedom and the not-so-Great Firewall,'' GreatFire.org, March 12, 2015, https://en.greatfire.org/blog/2015/mar/collateral-freedom-and-not-so-great-firewall.33 Charlie, ''We Are Under Attack,'' GreatFire.org, March 19, 2015, https://en.greatfire.org/blog/2015/mar/we-are-under-attack.34 For further discussion see Sarah McKune, '''Foreign Hostile Forces': The Human Rights Dimension of China's Cyber Campaigns,'' in China and Cybersecurity: Espionage, Strategy, and Politics in the Digital Domain, ed. Jon R. Lindsay et al. [New York: Oxford University Press, 2015], 260-293. See also Wang Chen, ''Concerning the Development and Administration of Our Country's Internet,'' translation by Human Rights in China, China Rights Forum: ''China's Internet'': Staking Digital Ground, no. 2 (2010), http://www.hrichina.org/en/content/3241, at para. III.6 (''We will perfect our system to monitor harmful information on the Internet, and strengthen the blocking of harmful information from outside China, to effectively prevent it from being disseminated in China through the Internet, and to withstand infiltration of the Internet by overseas hostile forces.''); Central Committee of the Communist Party of China's General Office, ''Communiqu(C) on the Current State of the Ideological Sphere,'' April 22, 2013, English translation by ChinaFile available at https://www.chinafile.com/document-9-chinafile-translation; Chris Buckley, ''China's New Leadership Takes Hard Line in Secret Memo,'' New York Times, August 20, 2013, http://cn.nytimes.com/china/20130820/c20document/dual/.35 Shuli Ren, ''China Internet: Alibaba, Tencent, Baidu To Continue Buying Spree, R&D,'' Barron's Asia, January 7, 2015, http://blogs.barrons.com/asiastocks/2015/01/07/china-internet-alibaba-tencent-baidu-to-continue-buying-spree-rd/.36 Alexa, ''Top Sites in China,'' http://www.alexa.com/topsites/countries/CN (accessed April 8, 2015).37 Doug Young, ''Investors Burn Out On Baidu Mobile Story,'' Forbes Asia, February 12, 2015, http://www.forbes.com/sites/dougyoung/2015/02/12/investors-burn-out-on-baidu-mobile-story/.38 ''Baidu Announces Fourth Quarter and Fiscal Year 2014 Results,'' PR Newswire, February 11, 2015, http://www.prnewswire.com/news-releases/baidu-announces-fourth-quarter-and-fiscal-year-2014-results-300034622.html.39 Baidu, Inc. SEC Form 20-F, FY 2011, http://www.sec.gov/Archives/edgar/data/1329099/000119312512139789/d243699d20f.htm.40 Sebastian Anthony, ''GitHub battles 'largest DDoS' in site's history, targeted at anti-censorship tools,'' ArsTechnica, March 30, 2015, http://arstechnica.com/security/2015/03/github-battles-largest-ddos-in-sites-history-targeted-at-anti-censorship-tools/.41 Baidu, Inc. SEC Form 20-F, FY 2011 http://www.sec.gov/Archives/edgar/data/1329099/000119312512139789/d243699d20f.htm42 Baidu, Inc. SEC Form 20-F, FY 2011 http://www.sec.gov/Archives/edgar/data/1329099/000119312512139789/d243699d20f.htm43 State Council of the People's Republic of China, Report on the Work of the Government (2015), delivered by Li Keqiang, Premier of the State Council, to the National People's Congress, March 5, 2015, http://english.gov.cn/archive/publications/2015/03/05/content_281475066179954.htm (emphasis added); see also Simon Sharwood, ''China reveals 'Internet Plus' plan to modernise and go cloudy,'' The Register, March 9, 2015, http://www.theregister.co.uk/2015/03/09/china_reveals_internet_plus_plan_to_modernise_and_go_cloudy/; ''When China's tech 'big four' meet 'Internet Plus,''' Xinhua, March 11, 2015, at http://www.wantchinatimes.com/news-subclass-cnt.aspx?id=20150311000020&cid=1102.44 The sixth point of the declaration was to ''vigorously develop the Internet economy. We should improve cyberspace trade rules, step up cross-border e-commerce cooperation, facilitate customs clearance and logistics, expand information consumption, and quicken steps to form a global Internet market.'' Organizing Committee of the World Internet Conference, Wuzhen Declaration, November 21, 2014, available at http://www.scribd.com/doc/247566581/World-Internet-Conference-Draft-Declaration; see also Catherine Shu, ''China Tried To Get World Internet Conference Attendees To Ratify This Ridiculous Draft Declaration,'' TechCrunch, November 20, 2014, http://techcrunch.com/2014/11/20/worldinternetconference-declaration/; Franz-Stefan Gady, ''The Wuzhen Summit and Chinese Internet Sovereignty,'' Huffington Post, December 9, 2014, http://www.huffingtonpost.com/franzstefan-gady/the-wuzhen-summit-and-chi_b_6287040.html.45 ''Baidu Founder Li and Politburo's Yu Join Top China Advisory Body,'' Bloomberg, February 4, 2013, http://www.bloomberg.com/news/articles/2013-02-02/baidu-chief-li-politburo-s-yu-join-china-s-top-advisory-body.46 Hsu Chang-ping, ''Baidu welcomes China's military to join China Brain project on AI systems,'' WantChinaTimes, March 7, 2015, http://www.wantchinatimes.com/news-subclass-cnt.aspx?id=20150307000015&cid=1101.47 For further discussion of this framework see Crandall et al., ''China Chats: Tracking Surveillance and Censorship in TOM-Skype and Sina UC,'' in First Monday 18, no. 7 (2013), http://firstmonday.org/ojs/index.php/fm/article/view/4628/3727.48 See Canada: Immigration and Refugee Board of Canada, China: The Public Security Bureau (PSB) Golden Shield Project, including implementation and effectiveness; Policenet, including areas of operation; level and effectiveness of information sharing by the authorities (2010-February 2014), March 7, 2014, CHN104762.E, available at http://www.refworld.org/docid/543ba3824.html.49 See GFWçšå‰ä¸–ä>>Šç--Ÿ¼Œä¸éƒ¨GFW之ç¶æ–¹æ>>¨å…´çšå‘家史 [''GFW Past and Present, Family History of the Father of the GFW Fang Binxing''], August 10, 2010, https://fangbinxing.appspot.com/2010/08/10/fangbingxing.html; see also Daniel Anderson, ''Splinternet Behind the Great Firewall of China,'' ACM Queue, November 30, 2012, http://queue.acm.org/detail.cfm?id=2405036; Australian Centre on China in the World, ''Fang Binxing and the Great Firewall,'' The China Story, https://www.thechinastory.org/yearbooks/yearbook-2013/chapter-6-chinas-internet-a-civilising-process/fang-binxing-and-the-great-firewall/.50 See GFWçšå‰ä¸–ä>>Šç--Ÿ¼Œä¸éƒ¨GFW之ç¶æ–¹æ>>¨å…´çšå‘家史 [''GFW Past and Present, Family History of the Father of the GFW Fang Binxing''], August 10, 2010, https://fangbinxing.appspot.com/2010/08/10/fangbingxing.html (''国家è®ç®—æ'ºç½‘ç>>'与ä息安全ç®ç†ä¸­åƒ(å®‰ç® ä¸­åƒ)æ¯åŽŸä产部现工ä部çšç›´å±žéƒ¨é—¨ã‚ 安ç®ä¸­åƒä¸Žå›½å®¶ä息化工ä½'é†å¯¼å°ç>>è®ç®—æ'ºç½‘ç>>'与ä息安全ç®ç†å·¥ä½'办公室与国家è®ç®—æ'ºç½‘ç>>'åº--æ¥æŠæ'¯å¤ç†åè°ƒä¸­åƒ (CNCERT/CC,äº'è--网åº--æ¥ä¸­åƒ)æ¯ä¸ä¸ª æ'ºæžå‡ å'—牌子çšå…"ç">>ã‚æ¯--å...‚æ–¹æ>>¨å…´ç®åŽ† 中''1999­-2000å¹´å'¨å›½å®¶è®ç®—æ'ºç½‘ç>>'åº--æ¥æŠæ'¯ å¤ç†åè°ƒä¸­åƒä>>>>副æ>>å·¥''与''è®ç®—æ'ºç½‘ç>>'åº--æ¥ å¤ç†åè°ƒä¸­åƒ''çšæç‹æ—¶é—´ä¸¤ç§è¯´æ"•å°±æ'‰ç' å¾®å...çšçŸ›ç›¾ã‚实é…ä¸Šå‡ 个æ'ºæžçšäººå‘基æ'¬ä¸ 致ã‚''). An official diagram mapping the relationship between CNCERT/CC, MIIT, and the National Network and Information Security Coordination Team is available in Zhou Yonglin, ''Introduction on Chinese Network Emergency Response System & CNCERT/CC's Activities,'' CNCERT/CC, March 2004, p. 10, at http://unpan1.un.org/intradoc/groups/public/documents/apcity/unpan016388.pdf.51 This entity is also known in English as the State Network and Information Security Coordination Group. Its responsibilities included: ''researching and enacting strategy and policy of national information security safeguard[;] organizing and coordinating related departments of government to protect critical information infrastructure[;] mobilizing and directing computer emergency response[;] improving information sharing and notification.'' Li Jingjing, ''Trends and Tactics in Cyber-Terrorism,'' Information Security Supervision Bureau, Ministry of Public Security, p. 13, at http://www.asean.org/archive/arf/13ARF/2nd-Cyber-Terrorism/Doc-7.PDF.52 Jon R. Lindsay, ''Introduction''China and Cybersecurity: Controversy and Context,'' in China and Cybersecurity: Espionage, Strategy, and Politics in the Digital Domain, ed. Jon R. Lindsay et al. [New York: Oxford University Press, 2015], 8.53 Jon R. Lindsay, ''Introduction''China and Cybersecurity: Controversy and Context,'' in China and Cybersecurity: Espionage, Strategy, and Politics in the Digital Domain, ed. Jon R. Lindsay et al. [New York: Oxford University Press, 2015], 11.54 It is important to note that patent applications do not necessarily reflect current capacities or actual deployment of a technology. They do, however, provide insight into the designs, focus, and goals of the filing entities.55 ''Great Firewall father speaks out,'' Global Times, February 18, 2011, at http://english.sina.com/china/p/2011/0217/360411.html. This article presents the following timeline of Fang's career: ''1984­1999 Teaches at Harbin Institute of Technology[;] 1999 Starts work at National Computer Network Emergency Response Technical Team/ Coordination Center of China as deputy chief engineer[;] 2000-2007 Appointed chief engineer and director of the center[;] 2001 Awarded special allowance by the State Council . . . .''56 See supra n. 50 and accompanying text.57 https://citizenlab.org/2014/08/cat-video-and-the-death-of-clear-text/58 http://www.secdev.org/projects/scapy/59 Although the GC will respond to a ''naked'' data packet, this tool first sends a SYN packet and an ACK packet to prevent NATs or conventional firewalls between the user and Baidu from dropping the probe packets. This test also first probes for the GC before probing for the GFW. Once the GFW decides to block two hosts from communicating, for the next minute it injects RSTs in response to any data packet it sees between those two hosts, which would confound the GC measurements somewhat.60 ''Baidu's traffic hijacked to DDoS GitHub.com [Updated],'' Anthr@X, Insight Labs, March 27, 2015 (GitHub.com(http://insight-labs.org/?p=1682); ''China's Man-on-the-Side Attack on GitHub,'' NETRESC AB, March 31, 2015 (http://www.netresec.com/?month=2015-03&page=blog&post=china%27s-man-on-the-side-attack-on-github); ''Pin-pointing China's attack against GitHub,'' Robert Graham, April 1, 2015 (http://blog.erratasec.com/2015/04/pin-pointing-chinas-attack-against.html#.VSBOpHXd9hE)61 http://insight-labs.org/?p=168262 http://www.netresec.com/?month=2015-03&page=blog&post=china%27s-man-on-the-side-attack-on-github63 http://blog.erratasec.com/2015/04/pin-pointing-chinas-attack-against.html
Appendix A: Link between GreatFire.org referrers and BaiduThis table lists the top 25 referrers seen in our sample of the GreatFire.org server logs, and links each one to Baidu.
DomainRequest CountLink to Baidu Propertiespos.baidu.com6,273,809.00direct Baidu propertytieba.baidu.com384,173.00direct Baidu propertyzhidao.baidu.com321,619.00direct Baidu propertywww.dm5.com207,398.00does a GET to Baidu imagewww.piaotian.net187,894.00uses jquery library from Baidu libscpro.baidu.com155,007.00direct Baidu propertywenku.baidu.com143,271.00direct Baidu propertycomic.sfacg.com114,382.00uses Baidu adsbbs.miercn.com111,478.00uses Baidu analyticswww.7k7k.com94,994.00uses Baidustatic.com resourcesmangapark.com94,986.00uses Baidu analyticsad.docer.wps.cn93,881.00uses Baidustatic.com resourcesmanhua.dmzj.com93,622.00uses Baidustatic.com resourceswww.iciba.com91,626.00uses Baidu analyticsm.movietube.pw87,396.00uses Baidu analyticspan.baidu.com84,974.00direct Baidu propertywww.douyutv.com84,945.00uses Baidu analyticswww.lwxs520.com75,964.00does a GET to Baidu imagewww.17k.com75,514.00uses Baidu analyticswww.jjwxc.net71,385.00uses Baidustatic.com resourcesimages.sohu.com67,170.00uses Baidu analyticstw.zhsxs.com65,896.00uses Baidu analyticsm.yy.com62,990.00uses Baidu adswww.4399.com60,630.00uses Baidu adswww.zhibo8.cc57,374.00uses Baidu ads
Appendix B: A Tool for Tracerouting the GC and GFWWe wrote cannon_traceroute.py, a tool that aims to trace the first hop between the user and Baidu at which the GFW and GC are active. As the GC no longer appears to be targeting Baidu traffic, this tool will not detect the GC, but will still detect the GFW. Our tool uses the scapy58 library to first craft raw packets designed to trigger the GC at each hop,59 and to then craft fake flows to trigger the GFW at each hop. An example output for a test:
> sudo ./cannon_traceroute.py 123.125.65.120WARNING: No route found for IPv6 destination :: (no default route?)Sniffer started................................................Great Firewall and Great Cannon traceroute from 192.150.187.17 to 123.125.65.120Traceroute for the Great FirewallHop 1: ICMPs: 192.150.187.1Hop 2: ICMPs: 192.150.187.251Hop 3: ICMPs: 169.229.0.140Hop 4: ICMPs: 128.32.0.80Hop 5: ICMPs: 128.32.0.64Hop 6: ICMPs: 137.164.50.16Hop 7: ICMPs: 137.164.22.7Hop 8: ICMPs: 4.53.16.185Hop 9: *Hop 10: ICMPs: 144.232.19.33Hop 11: ICMPs: 144.232.0.167Hop 12: ICMPs: 144.232.12.211 144.232.12.213 144.232.9.177Hop 13: ICMPs: 144.232.25.78 144.232.7.164Hop 14: ICMPs: 144.232.19.24 144.232.6.104 144.232.6.41 144.232.9.192Hop 15: ICMPs: 144.228.17.98Hop 16: ICMPs: 219.158.102.125Hop 17: ICMPs: 219.158.101.61Hop 18: Firewall ICMPs: 219.158.101.49Hop 19: Firewall ICMPs: 124.65.194.54Hop 20: Firewall ICMPs: 202.106.34.6Hop 21: Firewall ICMPs: 123.125.128.14Traceroute for the Great CannonHop 1: ICMPs: 192.150.187.1Hop 2: ICMPs: 192.150.187.251Hop 3: ICMPs: 169.229.0.140Hop 4: ICMPs: 128.32.0.80Hop 5: ICMPs: 128.32.0.64Hop 6: ICMPs: 137.164.50.16Hop 7: ICMPs: 137.164.22.7Hop 8: ICMPs: 4.53.16.185Hop 9: ICMPs: 4.69.152.144 4.69.152.16 4.69.152.208 4.69.152.80Hop 10: ICMPs: 144.232.19.33Hop 11: ICMPs: 144.232.0.167Hop 12: ICMPs: 144.232.12.211 144.232.12.213 144.232.9.177Hop 13: ICMPs: 144.232.25.78 144.232.7.164Hop 14: ICMPs: 144.232.19.24 144.232.6.104 144.232.6.106 144.232.6.41 144.232.6.43 144.232.9.192Hop 15: ICMPs: 144.228.17.98Hop 16: ICMPs: 219.158.102.125Hop 17: ICMPs: 219.158.101.61Hop 18: Cannon ICMPs: 219.158.101.49Hop 19: Cannon ICMPs: 124.65.194.54Hop 20: Cannon ICMPs: 202.106.34.6Hop 21: Cannon ICMPs: 123.125.128.14In this example, the first hop at which the GC and GFW are active is hop 18, between 219.158.101.69 and 219.158.101.49 (a link apparently belonging to China Unicom).
Appendix C: Selected Related Technical ReportsThe DDoS attack on GreatFire has been described in a range of technical reports.60 This section provides a quick chronology and summary of several recent technical posts and discussions. On March 25, the first official report with technical details, written by an anonymous author, was released by Greatfire.org. This analysis was based on logs collected from one of the attacked sites (d19r410x06nzy6.cloudfront.net) that formed part of GreatFire's infrastructure. The report observed strange timestamps in some of the packets in the logs, which it linked to malicious Javascript code sent when some clients loaded resources from Baidu's servers, including dup.baidustatic.com and ecomcbjs.jomodns.com.
As the attack gained visibility, other researchers contributed analysis. On March 27, Anthr@X did the first analysis61 on the malicious Javascript returned by Baidu, and pointed out that the packets containing the malicious code had different TTLs than the normal, non-malicious Baidu responses. Then, on March 31, NETRESEC62 provided more details on the malicious packets' TTLs, determining that they varied between 30 and 229. On April 1, Robert Graham published a careful and detailed analysis63 indicating that the GFW was injecting these packets. His findings match ours regarding localization of the injector; his report did not delve into the fine-grained workings of the injection that reveal the presence of a separate system from the GFW.
China Is Said to Use Powerful New Weapon to Censor Internet - NYTimes.com
Fri, 10 Apr 2015 18:06
PhotoThe Great Cannon system was used to intercept web and advertising traffic intended for Baidu, China's biggest search engine company, researchers said.Credit ReutersSAN FRANCISCO '-- Late last month, China began flooding American websites with a barrage of Internet traffic in an apparent effort to take out services that allow China's Internet users to view websites otherwise blocked in the country.
Initial security reports suggested that China had crippled the services by exploiting its own Internet filter '-- known as the Great Firewall '-- to redirect overwhelming amounts of traffic to its targets. Now, researchers at the University of California, Berkeley, and the University of Toronto say China did not use the Great Firewall after all, but rather a powerful new weapon that they are calling the Great Cannon.
The Great Cannon, the researchers said in a report published Friday, allows China to intercept foreign web traffic as it flows to Chinese websites, inject malicious code and repurpose the traffic as Beijing sees fit.
The system was used, they said, to intercept web and advertising traffic intended for Baidu '-- China's biggest search engine company '-- and fire it at GitHub, a popular site for programmers, and GreatFire.org, a nonprofit that runs mirror images of sites that are blocked inside China. The attacks against the services continued on Thursday, the researchers said, even though both sites appeared to be operating normally.
PhotoBill Marczak, right, a co-author of the report on a powerful new Chinese cyberweapon, with Morgan Marquis-Boire, a fellow Citizen Lab researcher.Credit Thor Swift for The New York TimesBut the researchers suggested that the system could have more powerful capabilities. With a few tweaks, the Great Cannon could be used to spy on anyone who happens to fetch content hosted on a Chinese computer, even by visiting a non-Chinese website that contains Chinese advertising content.
''The operational deployment of the Great Cannon represents a significant escalation in state-level information control,'' the researchers said in their report. It is, they said, ''the normalization of widespread and public use of an attack tool to enforce censorship.''
The researchers, who have previously done extensive research into government surveillance tools, found that while the infrastructure and code for the attacks bear similarities to the Great Firewall, the attacks came from a separate device. The device has the ability not only to snoop on Internet traffic but also to alter the traffic and direct it '-- on a giant scale '-- to any website, in what is called a ''man in the middle attack.''
China's new Internet weapon, the report says, is similar to one developed and used by the National Security Agency and its British counterpart, GCHQ, a system outlined in classified documents leaked by Edward J. Snowden, the former United States intelligence contractor. The American system, according to the documents, which were published by The Intercept, can deploy a system of programs that can intercept web traffic on a mass scale and redirect it to a site of their choosing. The N.S.A. and its partners appear to use the programs for targeted surveillance, whereas China appears to use the Great Cannon for an aggressive form of censorship.
The similarities of the programs may put American officials on awkward footing, the researchers argue in their report. ''This precedent will make it difficult for Western governments to credibly complain about others utilizing similar techniques,'' they write.
Still, the Chinese program illustrates how far officials in Beijing are willing to go to censor Internet content they deem hostile. ''This is just one part of President Xi Jinping's push to gain tighter control over the Internet and remove any challenges to the party,'' said James A. Lewis, a cybersecurity expert at the Center for Strategic Studies in Washington.
Beijing continues to increase its censorship efforts under its State Internet Information Office, an office created under Mr. Xi to gain tighter control over the Internet within the country and to clamp down on online activism. In a series of recent statements, Lu Wei, China's Internet czar, has called on the international community to respect China's Internet policies.
Sarah McKune, a senior legal adviser at the Citizen Lab at the Munk School of Global Affairs at the University of Toronto and a co-author of the report, said, ''The position of the Chinese government is that efforts to serve what it views as hostile content inside China's borders is a hostile and provocative act that is a threat to its regime stability and ultimately its national security.''
The attacks also show the extent to which Beijing is willing to sacrifice other national goals, even economic ones, in the name of censorship. Baidu is China's most visited site, receiving an estimated 5.2 million unique visitors from the United States in the past 30 days, according to Alexa, a web ranking service.
Kaiser Kuo, a Baidu spokesman, said that Baidu was not complicit in the attacks and that its own networks had not been breached. But by sweeping up Baidu's would-be visitors in its attacks, researchers and foreign policy experts say, Beijing could harm the company's reputation and market share overseas.
Beijing has recently said that it plans to help Chinese Internet companies extend their influence and customer base abroad. At a meeting of the National People's Congress in China last month, Premier Li Keqiang announced a new ''Internet Plus'' action plan to ''encourage the healthy development of e-commerce, industrial networks and Internet banking and to guide Internet-based companies to increase their presence in the international market.''
Yet the latest censorship offensive could become a major problem for Chinese companies looking to expand overseas. ''They know one of their biggest obstacles is the perception that they are tools of the Chinese government,'' Mr. Lewis said. ''This is going to hurt Baidu's chances of becoming a global competitor.''
Researchers say they were able to trace the Great Cannon to the same physical Internet link as China's Great Firewall and found similarities in the source code of the two initiatives, suggesting that the same authority that operates the Great Firewall is also behind the new cyberweapon.
''Because both the Great Cannon and Great Firewall are operating on the same physical link, we believe they are both being run under the same authority,'' said Bill Marczak, a co-author of the report who is a computer science graduate student at the University of California, Berkeley, and a research fellow at Citizen Lab.
Mr. Marczak said researchers' fear is that the state could use its new weapon to attack Internet users, particularly dissidents, without their knowledge. If they make a single request to a server inside China or even visit a non-Chinese website that contains an ad from a Chinese server, the Great Cannon could infect their web communications and those of everyone they communicate with and spy on them.
Ultimately, researchers say, the only way for Internet users and companies to protect themselves will be to encrypt their Internet traffic so that it cannot be intercepted and diverted as it travels to its intended target.
''Put bluntly,'' the researchers said, ''unprotected traffic is not just an opportunity for espionage but a potential attack vector.''
Paul Mozur contributed reporting from Hong Kong.
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Hillary 2016
Vaccine$
Swearing is emotional and creative language say researchers who claim it is GOOD for you | Daily Mail Online
Fri, 10 Apr 2015 17:27
Theory presented to British Psychological Society conference in BirminghamParticipants played aggressive video game and held ice-cold glass of waterDr Richard Stephens of Keele University added it explains why we swear'We want to use more taboo words when we're emotional', he saidBy Dan Bloom
Published: 09:55 EST, 11 May 2014 | Updated: 04:56 EST, 12 May 2014
Scroll down for an audio interview
Swearing is a harmless emotional release which could make you feel stronger, researchers have claimed - though only in moderation.
Participants were made to play aggressive computer games and could recall a wider variety of swear words after their session, as well as turning the air blue much more often.
Rather than just proving we swear more when we're angry, the psychologists insisted, the study showed profanity can be an emotional coping mechanism which makes us feel more resilient.
Letting off steam: Swearing could be a harmless emotional release, at least in moderation, researchers claim
And it showed the reasons for swearing were far more complicated than simple rudeness, they said.
The psychologists at Keele University in Staffordshire have spent several years trying to understand why we swear and what it does to our brains.
They presented the findings of their latest study to the British Psychological Society's annual conference this week.
TURNING THE NET BLUE: TOP 10 UK SWEAR WORDS ON FACEBOOK1. F***
2. S***
3. Bloody
4. P***
5. B****
6. Crap
7. C***
8. C***
9. Damn
10. D***
Source:Slate
In the video game study, they said, participants were asked to recall as many profanities as they could before and after playing.
Beforehand they could only recall an average of seven, but afterwards the total rose to eight.
Senior lecturer Dr Richard Stephens said: 'The video games made people feel more aggressive so their language became more emotional and they swore. This explains swearing and makes it more acceptable.
'We want to use more taboo words when we are emotional. We grow up learning what these words are and using these words while we are emotional can help us to feel stronger.
'Some words are more taboo than others - but the effects can be greater, the stronger the word.'
Speaking before the gathering of top psychologists, Dr Stephens also mentioned a previous study by his team which showed swearing made us feel less pain.
Participants were handed a glass of water filled with ice, and split into two groups - one told to swear and another told to keep quiet.
Intelligent: Dr Stephens said the average profile of a swearer is often sophisticated, like that of the spin doctor Malcolm Tucker (played by Peter Capaldi) in TV political satire The Thick of It
The group allowed to swear held the ice-cold glass for longer, they discovered.
Dr Stephens' interest in swearing began after he heard his wife cursing while she was in labour with their second daughter.
He has also studied research which he says debunks the theory that swearing is the language of the ignorant.
Instead, he said, the highly intelligent but foul-mouthed spin doctor Malcolm Tucker in political satire The Thick of It could be more accurate.
'The stereotype is that those who swear have a low IQ or are inarticulate is wrong. It is rich emotional language,' he said.
However, he warned: 'The more often someone swears, the less effective it is.'
Not everyone agrees that swearing is a harmless creative output.
BT Sport had to abandon post-match interviews outside grounds because fans could not be relied upon not to swear following an Arsenal-Liverpool match report in February which was repeatedly interrupted by foul language.
And Vladimir Putin reportedly signed a new law this week which bans swearing in Russian plays, films and books.
Researcher explains why swearing is GOOD.
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Parents who refuse to vaccinate children to be denied childcare rebates | Society | The Guardian
Sun, 12 Apr 2015 13:59
A one-year-old is administered with a vaccination '' the government will now close a loophole that allowed parents who refused to vaccinate children to still receive welfare payments. Photograph: David Levene for the Guardian
The Abbott government will tighten vaccination rules to ensure that people who refuse to immunise their children are stripped of family and childcare payments worth thousands of dollars a year.
The prime minister, Tony Abbott, said people would no longer be able to claim a ''conscientious objection'' to vaccination and still receive the childcare benefit, childcare rebate and the Family Tax Benefit part A end-of-year supplement.
The childcare benefit is currently set at $205 a week or close to $10,000 a year, the childcare rebate is worth up to $7,500 a year, and the Family Tax Benefit A annual supplement is $726. But the structure of childcare subsidies is complex and the total amounts vary based on family circumstances.
The policy, to take effect early next year, will continue to leave open exemptions on medical or religious grounds.
But the social services minister, Scott Morrison, said the new policy represented ''a very significant narrowing'' of the exemptions. A religion's governing body would have to formally register its objection with the government, which would have to approve it.
''There are no mainstream religions who have such objections registered,'' Morrison said. ''Those would apply to a very very small number of people. It would be likely to be in the thousands.''
Abbott and Morrison announced the ''no jab, no pay'' policy in Sydney on Sunday, saying 97% of families receiving family tax benefits met the current immunisation requirement at relevant age points.
''However more than 39,000 children aged under seven are not vaccinated because their parents are vaccine objectors. This is an increase of more than 24,000 children over 10 years,'' Abbott and Morrison said in a statement.
''The government is extremely concerned at the risk this poses to other young children and the broader community.
''The choice made by families not to immunise their children is not supported by public policy or medical research nor should such action be supported by taxpayers in the form of child care payments.''
Morrison urged parents to listen to ''the overwhelming advice'' of health professionals that ''it's the smart thing and the right thing to do to immunise your children''.
''If they're not going to do that, then the taxpayers are not going to subsidise that choice for them,'' Morrison said.
Abbott declined to say how much the policy might save the budget. ''This isn't a savings measure; this is a public health measure.''
The prime minister said he believed the policy should have bipartisan support but he did not take anything for granted.
The opposition leader, Bill Shorten, who has previously expressed support for the government taking a tougher stance, said on Sunday that Labor would work with the Coalition to increase immunisation rates.
''Labor understands that there are a small number of people who have deeply-held religious convictions, but other than that, Labor sees no case at all for parents not to be encouraged to immunise their children,'' Shorten said.
''What I don't accept is people just claiming some sort of loose, undefined conscientious objection and using that as an excuse not to do the right thing by their children.''
Shorten said political leaders should work with the childcare sector to ensure vulnerable children were not inadvertently excluded from early education and care as a result of the policy.
The president of the Australian Medical Association, Brian Owler, underlined the importance of people talking to their general practitioner as a credible source of information about vaccination.
Owler said the AMA had not originally supported revoking payments because it was worried about children being alienated or punished for the decisions of their parents. He said the policy would not eliminate the need for other initiatives to increase vaccination rates.
''You have parents coming through all the time,'' Owler said. ''You have to keep going with the education, the right messaging, to the media and the public to get parents to the right sources of information and to call out the anti-vax lobby for what it is: essentially scaremongering conspiracy theorists and peddling a load of rubbish and endangering lives doing it.''
The government is considering other elements of the Productivity Commission report '' including an overhaul of childcare subsidies '' as part of the ''families package'' to form part of the budget next month.
F-Russia
Ruble Set for Best Week Since 1998 as Russians Convert Dollars - Bloomberg Business
Fri, 10 Apr 2015 13:35
The ruble climbed, capping its biggest weekly gain in almost 17 years, as Russians moved their dollar savings into the local currency to take advantage of the world's biggest appreciation.
The ruble increased 1.3 percent to 51.20 by 2:18 p.m. in Moscow, taking its advance for the week to 11 percent, the most among currencies tracked by Bloomberg globally. Government bonds known as OFZs rose, pushing five-year yields down 31 basis points to 11.23 percent, the lowest since Dec. 2, as the ruble's rally spurred bets the central bank will take steps to stem the jump.
After rushing to buy dollars as the ruble lost almost half its value last year, Russian households have sold three times the amount of foreign currency this month as they did in all of March, according to Sberbank CIB's estimates. The nation's assets were also bolstered by oil, Russia's main export earner, which surged 3.3 percent this week.
''Factors including the oil's stabilization and the population's conversion of foreign currencies into rubles has created conditions for the ruble rally,'' Maxim Korovin, an analyst at VTB Capital in Moscow, said by phone. ''The ruble's strengthening has been heating up the appetite for OFZs and giving the regulator more scope for easing of the monetary policy.''
Forward-rate agreements show traders are betting on a 1.70 percentage-point reduction in benchmark borrowing costs in the next three months, 20 basis points more than at the start of April. The central bank has lowered its key rate twice this year to 14 percent.
Currency OverboughtPolicy makers are already taking steps to damp demand for rubles. The currency pared gains on Friday after the Bank of Russia announced it will increase its minimum interest rate on foreign-currency repurchase agreements.
The ruble's relative-strength index climbed to 82 on Friday, above the threshold of 70 that signals to some analysts that an asset has overshot.
While easing inflationary pressures, the rising ruble hurts Russia's budget by reducing the local-currency value of dollar-denominated energy export revenue. Converted into rubles, the price of Brent is at 2,865, the lowest level since January 2011.
This poses a risk for the country in a year when analysts are projecting a fiscal shortfall of 2.3 percent of gross domestic product, the biggest since 2010.
Exporters SellingThe scope for further appreciation remains as exporters convert foreign-currency revenues early to prepare for the next tax period, betting the ruble will only get stronger if they wait, according to Sberbank CIB's Iskander Abdullaev.
The weekly appreciation against the dollar was the largest since a temporary rebound in October 1998 following a government default that triggered a 71 percent depreciation for the year. Russia's dollar-denominated RTS stock index rose 1 percent to 1,013.14 on Friday, the highest level since November and the fifth day of gains.
Capital outflows slowed to $32.6 billion in the first three months of the year, less than half the amount in the previous three months, according to initial central bank estimates.
''The oil price has stopped falling and is behaving better now, the geopolitical noise has subsided, financial stress in the local market has been reduced dramatically and at the margin, macro conditions are showing some modest signs of improvement,'' Benoit Anne, the head of emerging-market strategy at Societe Generale SA in London, said by e-mail. ''You put all these in a blender and you end up with a good ruble cocktail.''
More Western Corp Expansion in Russia'...'...Dutch Spar International Opening 45 Stores in Moscow
Fri, 10 Apr 2015 16:09
SEE ALSO: Starbucks Expands Outlets in Russia
SEE ALSO: U.S. Martin Engineering Opens New Division in Moscow
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Spar International pushes ahead with Russian expansion
08 Apr 2015 |Helen Gilbert
Spar International has secured new licence agreements with two partners in Russia as it forges ahead with plans to expand Spar retail operations in the country.
The deal with Intertorg and Azbuka Vkusa will result in the opening of 45 Spar stores in the Moscow region over the next 12 months and comes on the back of a record year for Spar Russia, in which retail sales grew by more than 30% to 74.06 billion rubles '' equating to '‚¬1.45 billion.
At present, Intertorg holds a licence with Spar in the St. Petersburg region and operates 56 Spar supermarkets, including two hypermarkets. The company also runs 38 supermarkets in Moscow which will transition to the Spar brand as part of the latest licence agreement.
Azbuka Vkusa currently manages eight Spar supermarkets in the Moscow region.
''The agreements with Intertorg and Azbuka Vkusa mark the next phase in the development of Spar in Russia,'' CEO of Spar Russia, Sergey Loktev, said.
''The non-exclusive licences mean our partners in the Moscow region will work together to maximise the growth of the brand in the city, utilising their deep understanding of the Russian consumer and sharing Spar's commitment to delivering freshness, value, service and quality.''
Dr Gordon Campbell, CEO of Spar International described the retailer as having a 'proven record of resonating with Russian shoppers' over the past 15 years.
''The results announced today are proof of the increasing popularity of the brand to a point where, taken collectively, the Spar Brand now ranks among the top 10 retailers in Russia.''
SOURCE: http://www.thegrocer.co.uk/stores/property-and-planning/spar-international-pushes-ahead-with-russian-expansion/516695.article
.
SPAR, is a Dutch multinational retail chain and franchise with approximately 12,500 stores in 35 countries worldwide. It was founded in the Netherlands in 1932 by retailer Adriaan van Well. Through its affiliate organisations, Spar operates through most European countries, parts of Africa, Asia and Oceania. Its headquarters are in Amsterdam
SOURCE: http://en.wikipedia.org/wiki/Spar_%28retailer%29
FACT SHEET: U.S.-CARICOM Summit '' Deepening Energy Cooperation
Fri, 10 Apr 2015 17:33
The White House
Office of the Press Secretary
For Immediate Release
April 09, 2015
Today, President Obama met with Caribbean leaders in a U.S.-CARICOM Summit in Kingston, Jamaica. President Obama reaffirmed the importance of our relationship with the region, and the United States' commitment to partner with Caribbean countries to advance economic development, security, and good governance. Leaders discussed a broad range of issues, from our important trade and investment linkages to security cooperation. The leaders' discussion focused on the importance of improving energy security, reducing energy costs, and fighting climate change. This follows robust engagement on these issues over the last year, including the White House Caribbean Energy Security Summit hosted by the Vice President in January 2015 and the launch of the Caribbean Energy Security Initiative (CESI) coordinated by the Department of State. The United States is deepening this collaboration through the following initiatives: Clean Energy Finance Facility for the Caribbean and Central American (CEFF-CCA): The United States will launch a $20 million facility to encourage investment in clean energy projects. The facility will provide early-stage funding to catalyze greater private and public sector investment in clean energy projects. It will draw on the expertise of the U.S. Overseas Private Investment Corporation (OPIC) and the U.S. Trade and Development Agency (USTDA) in coordination with the U.S. Agency for International Development (USAID) and the Department of State. Energy Security Task Force: The United States will partner with Caribbean and Central American countries in a task force to evaluate progress in our cooperation and identify concrete steps to advance energy sector reform, regional integration, and clean energy development. Clean Energy Finance: In January, OPIC formed a dedicated financing and insurance team to advance development of the Caribbean renewable energy sector. OPIC is in advanced talks to finance a 20 MW solar farm in Jamaica, and has already committed financing to Jamaica's largest private-sector wind farm, a 36 MW facility in Malvern, St. Elizabeth Parish. OPIC is actively looking for opportunities to support solar and wind energy projects in Jamaica and throughout the broader Caribbean region. Clean Energy Technology Collaboration: The U.S. Department of Energy (DOE) and Jamaica's Ministry of Science, Technology, Energy, and Mining signed a statement of intent today to advance our shared interest in sustainable energy. Areas for potential cooperation include energy conservation and efficiency, energy infrastructure, micro grids and energy storage, fuel diversification, and energy policy. Clean Energy Economy Transition: The Department of Energy assembled U.S. and Caribbean stakeholder working groups to look at opportunities ranging from clean energy, efficiency, diversifying electricity generation, clean transportation and energy education, at the Caribbean Clean Energy Technology Symposium, held in St. Thomas in March. The working groups will report on progress at the 2016 Symposium to be hosted by Jamaica. Also, the Department of Energy will launch a new Energy Scenario Planning Tool¸ building on its Energy Transitions: Island Playbook, to help island communities plan clean energy projects that are most likely to attract investment, capitalize on local resources, and meet energy needs. Greening Tourism: The tourism industry is the largest energy user in the Caribbean. The Department of Energy, with its Pacific Northwest National Laboratory, and OPIC are undertaking the Caribbean Hotel Energy Efficiency and Renewables (CHEER) initiative, which supports projects to improve energy and water efficiency as well as the exchange of best practices in the hotel and tourism industry. USAID is launching a complementary project focused on the Eastern Caribbean that will develop new financing tools for energy efficiency and renewables. Jamaica Clean Energy Program: USAID is working with the Government of Jamaica and the private sector on a new integrated Clean Energy Program to establish the pre-conditions for clean energy development, optimize renewable energy integration, and accelerate private-sector clean energy investment.
Russian-Ukrainian relations thaw slightly over new gas deal
Fri, 10 Apr 2015 17:54
Alexander Novak, Russia's energy minister.
Two weeks ago, Ukraine said it would suspend importing Russian gas when the countries' contract expired on March 31, primarily because of the high price, especially when it can get the fuel at lower cost from Europe.Apparently that pressure worked. The two countries' state-owned gas companies, Ukraine's Naftogaz and Russia's Gazprom, signed a three-month contract on April 2 that would supply Ukraine with less costly gas from Russia through June.
And the gas will flow regardless of the $5 billion debt, disputed by Kiev, that Naftogaz owes to Gazprom, according to Alexander Novak, Russia's energy minister. He said the debt, subject to an eventual ruling by an arbitration court in Stockholm, would not interfere with the April-June deliveries of gas to Ukraine.
"We currently have a prepayment system," Novak said April 4. "As far as I am aware, they have paid $30 million, which means that there will be supplied gas for this amount."
This is major departure from the history of sour relations between Kiev and Moscow over gas supplies, which are supplied via pipelines to Ukraine, which itself serves as a transit region for Russian gas to customers farther west in the European Union.
Three times - in 2006, 2009 and 2014 - disputes over Ukraine's payments have led Russia to shut down the flow of gas, affecting not only Ukraine but the EU customers downstream. Traditionally the Europeans had relied on Russia for about 30 percent of their gas needs, with half of it flowing through Ukraine. Now that amount has reduced somewhat as the EU has found alternatives to Russian gas.
The 2014 shutdown lasted six months until the European Commission (EC) helped Kiev and Moscow reach a temporary deal in October to provide Ukraine with gas through March 31, covering the country's harsh winter.
Now Ukraine's Naftogaz has another three months to stock up on fuel in case it falls short next winter. Novak said that probably would require Ukraine's purchase of between 11 billion and 12 billion cubic meters this summer. That will begin with the purchase of 1 billion cubic meters of gas in April, he said, three times as much as it received in March.
Under the new three-month deal, Naftogaz will pay even less for the fuel from Gazprom than it did under the "winter package" that expired on March 31. The new price will be $248 per 1,000 cubic meters, compared with $329 under the previous contract, Ukraine's Energy Ministry said April 2.
Ukrainian Energy Minister Volodymyr Demchyshyn called this a "victory" because it shifted the focus between the two countries to an economic rather than a political approach.
Anna-Kaisa Itkonen, a spokeswoman for the EC, agreed, calling Moscow's offer of a lower price "good and welcome."
How to win hearts and minds: Putin returns Nazi-looted icon to Greek prime minister -- Puppet Masters -- Sott.net
Sun, 12 Apr 2015 14:39
(C) Sergei Karpukhin / ReutersGreek Prime Minister Alexis Tsipras meets with Patriarch of Moscow and All Russia Kirill in Moscow Apr. 9.
President Vladimir Putin has presented Greek Prime Minister Alexis Tsipras with an ancient Greek icon that had been looted decades earlier, during the Nazi occupation of Greece.Putin's spokesman Dmitry Peskov said in comments to news site Vesti.ru on Thursday that Putin personally gave Tsipras the icon, which depicts Saint Nicholas and Saint Spyridon, following their talks at the Kremlin on Wednesday.
Peskov said the icon was stolen by a Nazi officer when Greece was under German occupation during World War II, and had recently been purchased from the officer's descendants by an unnamed Russian man.
With many private partners, Russia is eager to establish strong financial and political cooperation, but also cultural exchange.
"The Prime Minister of Greece Alexis Tsipras gave an icon of St. Nicholas the Wonderworker and St. Spyridon, which was stolen during the occupation of the monastery of Sparta Nazi officer Friedrich-Wilhelm M¼ller", - quotes RIA Novosti source in the Greek government. Now, the relic will be able to return to their own rightful owners.
Friedrich-Wilhelm M¼ller - Nazi officer who stole the icon from Greek monastery - during the war, earned the nickname the Butcher of Crete. He has sanctioned the so-called massacre in Viannos, when in early September 1943, the German troops destroyed the inhabitants of almost 20 villages. In retaliation for their support of the guerrillas were killed over 500 people. In 1945 Mueller was arrested by the red army and handed over to Greek authorities. In 1947, he was executed in Crete.
He added that later, the icon was purchased by patrons from the descendants of the Nazis. "And thus the icon was back where she promised to be historically," said Sands. He stressed that the Russian President Vladimir Putin gave the relic directly to the Prime Minister of Greece Alexis Tsipras.
News of the icon's return broke as the State Duma, Russia's lower house of parliament, prepares to host the relics of St. George, which hail from Greece's Mount Athos.
Saint George is one of the most venerated saints in the Russian Orthodox Church. Seen as the patron of warriors, he is portrayed on Moscow's coat of arms.
The Russian Orthodox Church has been the bulwark of President Vladimir Putin's turn toward conservatism and traditionalist values during his third term in the Kremlin.
In recent months, the federal government has sided with the church in a scandal with over a rendition of Richard Wagner's opera Tannh¤user in the Siberian city of Novosibirsk, and Patriarch Kirill has delivered his first speech in the State Duma this January.
Fascist Kiev junta confiscates newspaper and blocks 10,000 websites
Sun, 12 Apr 2015 14:10
As confirmed in an earlier report April 9, 2015, the Security Bureau of Ukraine, on April 7th, had seized and disappeared two Odessa bloggers, who were trying to get an independent investigation, and ultimate prosecution, of the individuals who participated in the 2 May 2014 massacre of regime opponents, and who burned, shot, and clubbed to death perhaps over 200 in the Odessa Trade Unions Building '-- the event that precipitated the breakaway of Donbass from the rest of the former Ukraine, the country's civil war. (See Ukraine "Disappears" Opponents of the Kiev Regime. Abductions of Independent Journalists By Eric Zuesse, April 09, 2015)And I also reported that April 7th saw the official announcement that,
"The security service of Ukraine ... has discontinued operation of a number of Internet sites that were used to perpetrate information campaigns of aggression on the part of the Russian Federation aimed at violent change or overthrow of the constitutional order and territorial integrity and inviolability of Ukraine."
The follow-up to that story is the news on April 9th, which was reported in the courageous independent Kiev newspaper,Vesti, that"SBU has blocked more than 10,000 websites."It says that, "Law enforcers seized the servers," and that one SBU official told the newspaper, "'We have made the decision of the court and confiscated equipment.' He promised to return the servers in two months."Another news report on April 9th in Vesti tells of seizures of that day's edition of newspapers by far-right toughs at news stands throughout the city, and the story even shows a video of Right Sector toughs raiding and emptying a Vesti delivery van headed out for distribution. The report also said:
"On Thursday, April 9, machines [coin-operated distribution boxes] that were transporting part of the circulation of the Kiev edition of the newspaper 'Vesti' were attacked. The attacks occurred around the metro stations 'Heroes of Dnepr' and 'Vasylkivska.' In both cases, the scenario was the same: the circulation machine was blocked by two cars that emerged containing unidentified men wearing symbols of the 'Right Sector' who illegally seized the circulation. In the case near the metro station 'Vasylkivska,' a driver was beaten, and the attackers threatened to burn his car."
Back on 5 July 2014, Vesti had headlined, "Masked men smashed and fired into 'Vesti': broke windows, spread tear gas." A video accompanied that news report, too. The video showed a man outside the newspaper's office, opening the door, being suddenly attacked by approximately a hundred men who rushed at him from hiding and beat him.The accompanying news report from a witness said:
"I first heard several shots. Then stones and Molotov cocktails were hurled at windows on the first and second floors. After that, the room filled with tear gas, which quickly spread throughout the office, and it's still very hard to breathe. One of the guards who tried to stop the thugs was beaten."
The video shows all of this from the outside of the building.There are accompanying photos of the ransacked office.
That news report, in turn, linked to an earlier one, on 27 June 2014. That report had said: "Suddenly, four dozen masked strangers came, headed by the controversial deputy of Kyiv City Council, Igor Lutsenko." These men "began to shout anti-Putin slogans, and then climbed onto the improvised stage" where there was to be presentation of a Constitution Day award. "Finally, radicals tried to throw bricks at our editors, but Maidan volunteers blocked that."
The head of the Security Bureau of Ukraine, Valentyn Nalyvaychenko, the man who closed 10,000 online sites on April 7th, was reported, a week earlier, on April 1st, (translation here) saying:
"SBU does not need to invent anything new. It is necessary only to build on the traditions and approaches that were set forth by the Security Service of the OUN-UPA in the 1930-1950 years. They battled against the aggressor [Russia] during the temporary occupation of the territory [Ukraine, which 'temporary' period was already 350 years], had a patriotic education, military counterintelligence, and relied on the peaceful Ukrainian population, using its unprecedented support."
This videorecounts and shows the history of "OUN-UPA in the 1930-1950 years" and documents that it carried out most of Adolf Hitler's extermination program in Ukraine during World War II '-- including 80% of the Babi Yar massacre of Jews, which the Russian poetYevtushenkomemorialized. To the people that the Obama Administration hasplaced in power in Ukraine, it was a heroic achievement. And yet, far-right Jews are part of it '-- ideological brothers-under-the-skin, and it also has the support of98%+ of the U.S. Congress.The head of the Security Bureau of Ukraine lied about the 'temporary' inclusion of Ukraine as part of Russia, and also about how 'peaceful' was the reign of Ukraine's and Germany's nazis over Ukraine during 1940-1944. But at least he was honest that he is returning to those "traditions and approaches."
Barack Obamareigned over the entire process andinstalled these peopleinto power over Ukraine. He has almost 100% congressional support for that within both the Republican and Democratic Parties, even though over two-thirds of Americans who have an opinion on the matter are opposed to his policy. America's Establishment wants him to pursue this policy more aggressively. And the West's newsmedia blame Russia's Vladimir Putin.
Here is a video of Ukraine's troops shelling the Donbass village of Slavyansk and joking that they'll turn it into a "crematorium."
As I reported earlier, the founder of Right Sector, Dmitriy Yarosh, was the leader of the thugs who perpetrated the May 2nd massacre, and who also carried out the February 2014 coup that brought these people to power in Ukraine. Starting on April 20th (Hitler's birthday), his men will be receiving military training and weapons from U.S. troops, whom Obama is sending in to help them and other executioners with their program of exterminating the residents in Donbass '-- the region that rejects the coup-imposed government. So, Yarosh helps Obama not only by terrorizing the few remaining independent news media in Ukraine, but also by installing Obama's regime there, and now, increasingly, by fighting his war there. Yarosh is already the most powerful person in Ukraine, and yet his power is still increasing there. He's a man to watch. He wants Putin dead, so Putin is probably watching him carefully. Obama meanwhile, is watching Putin's 'aggression.'
Investigative historian Eric Zuesse is the author, most recently, of They're Not Even Close: The Democratic vs. Republican Economic Records, 1910-2010, and of CHRIST'S VENTRILOQUISTS: The Event that Created Christianity, and of Feudalism, Fascism, Libertarianism and Economics.
The Kremlin Declares War on Memes · Global Voices
Sun, 12 Apr 2015 13:46
A declaration of war on Internet memes. Edited by Kevin Rothrock.
Russian censors have determined that one of the most popular forms of Internet meme is illegal. According to Roskomnadzor, the Kremlin's media watchdog, it's now against the law to use celebrities' photographs in a meme, ''when the image has nothing to do with the celebrity's personality.''
The new policy comes on the heels of a court decision in Moscow, where a judge ruled that a particular photo meme violates the privacy of Russian singer Valeri Syutkin. The court's decision targets an article on Lurkmore, a popular Wikipedia-style Russian website that focuses on Internet subcultures and memes.
An illegal memeThe meme in question is an image macro built on a lyric from an obscene Russian song from 2005. The phrase, ''Bei Babu po Ebalu'' (usually shortened to ''BBPE''), translates roughly to ''Smack the Bitch in the Face.'' The song belongs to an obscure musician named Nambavan (''Number One''), and appeared on an album titled ''Sex, Drugs, and Russian Girls.''
According to Lurkmore, the meme based on Nambavan's offensive lyrics first emerged in 2008 on the Russian imageboard 2ch.ru, where users posted links to the music video, as a way of insulting each other. 2ch users then toyed with different image macros, overlaying the ''BBPE'' phrase on photos of pop star Philipp Kirkorov and actor Aleksey Panin, but singer Valeri Syutkin eventually became the face of the meme.
''Bei Babu po Ebalu,'' featuring Valeri Syutkin.
The meme seems to work best with Syutkin because of the singer's reputation for saccharine, romantic music that is especially popular among women. In other words, the joke is that he is perhaps the last person anyone would expect to attack a woman.
So long, image macros?An image macro is ''an image superimposed with text for humorous effect.'' Even if you've never seen this term before, chances are you've already encountered more than a few image macros.
One of the most common ways to get laughs with this type of meme is juxtaposition. The obscene sexist lyrics of Nambavan's song are basically the opposite of what you'll find in a song by Valeri Syutkin.
In this sense, it would be fair to compare the ''BBPE'' meme to something like ''Advice Dog,'' where Internet users start with a photograph of an adorable puppy and attach advice that is often unethical or deplorable.
''Advice dog.''
Roskomnadzor's vague new policy threatens to do more than crack down on potentially defamatory juxtaposition, however. By saying it is illegal to add celebrities' images to memes that ''have nothing to do with the celebrity's personality,'' the Kremlin could be opening the door to banning a whole genre of absurdist online humor.
Jeff Goldblum is, well, you know the rest.
Consider some other popular image macros, like ''Jeff Goldblum Is Watching You Poop'' (a bathroom joke based on a screencap from the 1986 horror remake The Fly) or Eduard Khil's ''Trololo'' (another music-based meme), which use celebrities to make jokes that are so senseless or obscure that it would be easy to conclude such memes ''have nothing to do with the celebrity's personality.'' If Roskomnadzor wants, it could use this new policy to ban a wide variety of Internet memes.
Three lousy optionsRuNet Echo spoke to Lurkmore's founder and chief administrator, Dmitry (David) Homak, who said one of the problems with challenging the court decision against the article about ''BBPE'' and Valeri Syutkin is that he's received no official documents from the Russian government:
They evade the defendant [Lurkmore] by any means necessary. 'You can't challenge it,' they tell you. 'We don't know if you're the guys who own the site, and we don't want to hear from you.'''
Homak says he now has to choose between three unappealing alternatives: (1) he can try to find a way to establish standing and challenge the ruling in court, (2) he can block the article for Internet users based in Russia, or (3) ''there's always the option of telling them to fuck off, which would get us blocked in Russia, but that's probably not the smartest move.''
If history is any indication, Lurkmore will probably opt to block the ''BBPE'' page for Russian users, which is the strategy it's taken several times already, when Roskomnadzor has blacklisted or threatened to blacklist the website for content about suicide and illegal drugs. Homak has until early May to decide what to do.
What's the point of banning this stuff?Besides musicians with hurt feelings, it's not unthinkable that Roskomnadzor might one day apply its new policy on memes to other kinds of public figures, like politicians. If this ever happens, it could theoretically become illegal to photoshop a shirtless Vladimir Putin onto a bird, or a bear, or any of the other dozens of animals you can find the Russian President riding in a cursory search on Google Images.
Vladimir Putin, as the Internet knows him.
Banning all shirtless Putin memes, let alone trying to close down the ''BBPE'' photo of Syutkin, is an impossible task, of course. Roskomnadzor's pressure on Lurkmore, like much of its policing of the RuNet, is meant instead to scare other websites into censoring their own content.
As for Syutkin, he says his mother is the one who convinced him to take Lurkmore to court over the meme. ''I know I'm not alone here,'' he told the newspaper Izvestia. ''I want to help instill some order on the RuNet, so personal data is used with respect.''
Given that the ''BBPE'' meme is more than six years old, however, many RuNet users'--including most people in the Lurkmore community'--suspect that Syutkin's concerns have less to do with Russia's Internet culture than with promoting his name to rescue sales of his latest album, which debuted last month.
Russia just made a ton of Internet memes illegal - The Washington Post
Sun, 12 Apr 2015 13:43
(Imgflp.com)
In post-Soviet Russia, you don't make memes. Memes make (or unmake?) you.
That is, at least, the only conclusion we can draw from an announcement made this week by Russia's three-year-old media agency/Internet censor Roskomnadzor, which made it illegal to publish any Internet meme that depicts a public figure in a way that has nothing to do with his ''personality.''
Sad Keanu? Nope.
Sad Putin? Absolutely not.
''These ways of using [celebrities' images] violate the laws governing personal data and harm the honor, dignity and business of public figures,'' reads the policy announcement from Roskomnadzor.
To be clear, this isn't a new law passed by parliament or anything '-- it's just a (pretty startling) clarification of existing policy, published to the popular social network Vkontakte. According to Russian media, the announcement came in light of a lawsuit filed by the Russian singer Valeri Syutkin, who sued an irreverent Wikipedia-style culture site over an image macro that paired his picture with some less-than-tasteful lyrics from another artist's song. On Tuesday, a Moscow judge ruled for Syutkin, prompting the Roskomnadzor to publish an update to its ''personal data laws.''
The meme in question. That test translates to ''smack the b'--- in the face.'' (Via Global Voices)
Those laws now ban, per Roskomnadzor's announcement, memes that picture public figures in a way that ''has no relation to [their] personality,'' parody accounts and parody Web sites. If a public figure believes such a site or meme has been made about him, the announcement continues, he can report them to the Roskomnadzor, which '-- in addition to overseeing Russia's Internet censorship program '-- can file claims in court. Web sites are essentially given the choice of blocking the offending content in Russia, or seeing their whole sites get blocked across the country.
If that sounds crazy to U.S. readers, it probably should: U.S. law gives a very, very wide berth to Internet speech, even when it depicts private people or children '-- and especially when it depicts public figures.
(Imgflip.com)
Russia, on the other hand, has taken a series of steps to increase government control of the Internet in recent months. Just last August, Russia enacted a law that forced all bloggers with more than 3,000 daily readers to register with the Roskomnadzor, basically outlawing anonymous blogs. Earlier in the year, Russia approved a law that lets Roskomnadzor unilaterally block Web sites without explanation; the sites of prominent Putin critics were among the first to go dark.
It is impossible to know, of course, exactly how much of the Russian Internet will be affected by the change and to what degree this new policy will be pursued or enforced. (It is worth noting that public figures have to take their complaints to the Roskomnadzor, which many presumably will not do.)
Still, if the policy is enforced, the implications for the Russian memeosphere could be huge: According to a recent academic census of English-speaking memes, nearly a third of the Internet's most popular memes depict a specific person. Just think of how many excellent memes depict Vladimir Putin!
(Imgflp.com)
(Zofia Smardz kindly translated all the Russian referenced in this post.)
Liked that? Try these:
Caitlin Dewey runs The Intersect blog, writing about digital and Internet culture. Before joining the Post, she was an associate online editor at Kiplinger's Personal Finance.
Continue reading
Yemen
Dead or alive: Al-Qaeda in Yemen offers 20kg gold for Houthi leader, ex-president
Fri, 10 Apr 2015 15:59
(C) Reuters / Mohamed al-SayaghiLeader of the Houthi group Abdel-Malek al-Houthi.
A bounty of 20 kilograms of gold has been promised by Al-Qaeda for the capture or killing of the leader of Yemen's Houthi rebels and his closest ally, ex-president Ali Abdullah Saleh, SITE monitoring group said.Al-Qaeda in the Arabian Peninsula (AQAP) announced the bounty in a video released through its media arm on Wednesday.The Shiite Muslim Houthi rebels, who took control of Yemen's capital, Sanaa, in 2014 and are now on the offensive in the southern part of the country, are led by Abdel-Malek al-Houthi.
Al-Houthi, known to be an efficient battlefield commander, established himself as a revolutionary leader, following mass protests in Yemen 2011.
There's little information about the rebel strong man, reportedly in his early 30s, as he tries to keep a low profile, rarely appearing in public or talking to the press.
The Houthi offensive is supported by soldiers loyal to former President Saleh, who was forced to give up power in Yemen after a 33-year rule in 2012.
Being a radical Sunni Islamist movement, Al-Qaeda views the Houthis and Saleh, representing the Shiite Zaydi minority in Yemen, as heretics.
Al-Qaeda's Yemeni wing has bolstered its activities in the country in recent weeks as the group assaulted the town of Mukalla in early April and freed prominent local terrorist leader, Khaled Batarfi.
On Tuesday, the jihadists reportedly assaulted a remote Yemeni military post near the border with Saudi Arabia, killing several officers.
The attacks came amid Saudi-led coalition's airstrikes on Yemen, which were launched two weeks ago with an aim of surprising the Iran-liked Houthis and reinstating deposed president Abd-Rabbu Mansour Hadi to power.
Caliphate!
'Cyber Caliphate' overtake French TV station
Fri, 10 Apr 2015 16:09
(C) Reuters / Thaier Al-Sudani
Pro-Islamic State (IS, previously ISIS/ISIL) hackers attacked French television network TV5Monde on Wednesday evening, taking hostage the broadcast of its TV channels, websites and Facebook page, according to the network."We are no longer able to broadcast any of our channels. Our websites and social media sites are no longer under our control and are all displaying claims of responsibility by the Islamic State," the broadcaster's director general Yves Bigot told AFP.
The hackers reportedly uploaded various photos to TV5Monde's Facebook page, claiming to be personal IDs and resumes of relatives of French soldiers who fought in anti-IS operations. Threats were issued towards them. The pictures were allegedly visible for a short time and then disappeared.Director of TV5Monde, H(C)l¨ne Zemmour, said this was the biggest cyber-attack the network has seen in the past 30 years, FranceTVInfo reported. Zemmour said that right after the attack, the channel's social network and website displayed threats in French, Arabic and English.TV5Monde's Facebook page briefly showed the logo of 'Cyber Caliphate' in the profile picture slot.
Loyalists of the IS have become more and more active online under that name.
Back in January the Cyber Caliphate group even hacked into the official Twitter account of the United States Central Command - CENTCOM. The hackers sent out a series of tweets from the @CENTCOM account warning "AMERICAN SOLDIERS, WE ARE COMING, WATCH YOUR BACK. ISIS."
Similar cyber-attacks were reported at local Maryland television station and a New Mexico newspaper in the US. The incidents even prompted an FBI investigation into the Cyber Caliphate group.
Newsweek's Twitter feed was also taken over by hackers, claiming to be part of the Cyber Caliphate.
Other incidents claimed by the group included gaining access to Twitter feed of military spouses, including the account of support group called Military Spouses of Strength.
The pro-IS hacking group also attacked the website of the troubled Malaysia Airlines, with the message "Hacked by Cyber Caliphate" appearing on the homepage underneath a picture of a well-dressed lizard in a top hat.
Southern Poverty Law Center: The Age of the Wolf. [This thing is hilarious. So many memes. So little time.]
Wed, 08 Apr 2015 22:06
Pondering the case later, Louis Beam, a violent Klansman and movement theoretician, republished an influential essay on ''leaderless resistance'' he'd written in 1983. In it, he advocated the end of large groups with a pyramid leadership structure, arguing that such organizations were too easy to infiltrate and destroy. In their place, he called for lone wolf action or leaderless resistance, by which he meant cells of no more than six men. The idea was these cells and individuals would act on their own, with no direction or contact with other radicals. In that way, he reasoned, even the destruction of a single cell would have little effect on the larger movement.
''As honest men who have banded together into groups or associations of a political or religious nature are falsely labeled 'domestic terrorists' or 'cultists' and suppressed,'' he wrote, ''it will become necessary to consider other methods of organization '-- or as the case may very call for: non-organization.''
Tom Metzger, a prominent neo-Nazi who long operated from California but now lives in Indiana, took up the leaderless banner after Beam, tirelessly promoting his ideas with such publications as his ''Laws for the Lone Wolf,'' carried on his Resist.com website. Metzger advised fellow racists to avoid membership in groups, keep cash on hand for emergencies, and ''never truly admit to anything.''
''Never keep any records of your activities that can connect you to the activity,'' he wrote as part of a raft of suggestions. ''Keep in mind that repeated activity in one area will lead to increased attention to the area and possibly to you. The more you change your tactics, the more effective you will become.''
Whether because of the admonitions of Beam, Metzger and others, or simply because the tactic makes obvious operational sense, there is little question that the vast majority of recent terror attacks in the United States have been by lone wolves or very small leaderless cells. There's also little question that the political violence is continuing apace and that little seems to have been effective in stopping it. It may not have had to be this bad.
DHS Weighs In, Then Out
On April 7, 2009, the team of Department of Homeland Security analysts who study non-Islamic domestic terrorism issued a confidential report to law enforcement agencies entitled ''Right-wing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment.'' The report, which noted the effect the economy and the election of the nation's first black president was having on the radical right, was almost immediately leaked to the right-wing media.
There, it was pilloried, with right-wing pundits and groups like the American Legion falsely claiming that it attacked military veterans, conservatives and others on the political right. That was clearly not true '-- in fact, the report was remarkably accurate in its analysis and warnings (which included the assertion that the threat of lone wolves and small cells was growing) '-- but enough of a political firestorm was created that then-DHS Secretary Janet Napolitano renounced its findings. The team that wrote it and lead analyst Daryl Johnson were falsely accused of failing to follow DHS' procedures and were criticized by Napolitano and others in public.
But then undeniable reality began to kick in.
Even before the DHS report's publication '-- three days earlier, to be exact '-- the evidence was mounting. On April 4, 2009, Richard Poplowski, an extremist who believed the government was about to unleash troops against American citizens, ambushed and killed three Pittsburgh police officers responding to Poplowski's mother's call reporting a domestic disturbance at her home. Poplowski, who also had racist and anti-Semitic views, was eventually sentenced to death in the killings.
Three weeks later, a Florida National Guardsman named Joshua Cartwright, who had earlier expressed interest in joining a militia group and also was ''severely disturbed'' about Obama's election, shot two Okaloosa County sheriff's deputies to death as they attempted to arrest Cartwright on domestic violence charges.
About a month after that, on May 31 '-- after Napolitano had withdrawn the April DHS report and apologized for its contents '-- an anti-abortion activist who had also been involved in the antigovernment ''freemen'' movement of the 1990s shot and killed Kansas abortion provider Dr. George Tiller in Tiller's church. A few days later, on June 10, an elderly neo-Nazi named James von Brunn opened fire at the U.S. Holocaust Memorial Museum and killed a guard. He clearly intended to get into the museum and kill many more, but was himself shot and later died.
From there, the roster of human carnage continued without pause. A nativist extremist murdered a Latino man and his 9-year-old daughter; a long-time white supremacist was indicted and later convicted of sending a mail bomb that injured a diversity officer in Arizona; an angry tax protester flew an airplane into an Austin IRS building, killing himself and an IRS manager and injuring 13 others.
The Federal Response
But by then, almost the entire DHS team led by Daryl Johnson had left, discouraged by their treatment and DHS' new reluctance to issue any reports because of the fear that they might become controversial. They were exhausted and perplexed by the criticisms of Napolitano, who accused them of violating vetting procedures. And Napolitano was not the only political figure that criticized Johnson and his colleagues. Then-House Minority Leader John Boehner (R-Ohio), for instance, described the DHS report as ''offensive and unacceptable'' and charged, without any basis, that DHS had abandoned the word ''terrorist'' to describe Al Qaeda and instead was using ''the same term to describe American citizens who disagree with the direction Washington Democrats are taking our nation.''
In the years since then, the DHS has held up or canceled a number of planned reports on domestic terrorism of various types. Even some law enforcement briefings were cancelled. At the same time, in the aftermath of the Sept. 11, 2001, Al Qaeda attacks, the Justice Department's Domestic Terrorism Executive Committee was allowed to go fallow for more than a decade. But in the aftermath of the April 2014 murder of three people at two Kansas Jewish institutions, allegedly by a well-known neo-Nazi, Attorney General Eric Holder announced that he was bringing the committee back to life. It had held no meetings, however, as of press time.
Johnson's DHS unit was not a law enforcement agency, but it did play a key role in providing law enforcement with intelligence assessments. While it certainly could not prevent most terrorist attacks, the information it once produced was of high interest and importance to many police agencies. Former West Memphis, Ark., Police Chief Bob Paudert, whose police officer son was murdered by a father-and-son team of antigovernment extremists in 2010, has denounced the government for failing to brief police on such things as the ''sovereign citizens'' movement. His son's killers were sovereigns, who reject the laws of the federal government, and Paudert believes that if his son had been briefed on them he might have lived.
The FBI has taken up some of the slack left by DHS with occasional reports on extremism. And more than 70 fusion centers '-- regional centers where federal, state and local law enforcement agencies share information about threats '-- put out occasional papers and warnings to possible targets. But those who study terrorism are still deeply worried by the virtual dissolution of the DHS team. ''It was a big mistake to take those people off the radar,'' said Mark Hamm, a criminologist at Indiana State University. ''As soon as Barack Obama was elected, we could almost see it in the wind that there was going to be a revival of the radical right.''
Still, there does seem to be some new activity on the part of the federal government, including the planned reactivation of the Domestic Terrrorism Executive Committee. The government is funding a number of studies on radicalization and other matters related to domestic terrorism. But it still remains to be seen if these initiatives and others really deal effectively with the threat.
For his part, Daryl Johnson, who warned in 2009 of the increasing move toward lone wolf and leaderless terrorism '-- criminal acts that are almost impossible to stop in advance because so few people are involved in their planning '-- worries that the government still concentrates too much on foreign Muslim extremists, and that the recent Charlie Hebdo attack in Paris could add to that bias. He says that another extreme-right attack on the order of Oklahoma City, which was facilitated by the fact that only four people knew of the plot in advance, is entirely likely.
''We're long overdue for a much greater attack from the far right,'' Johnson said as he weighed the prospects for violence by terrorists like Larry McQuilliams, who clearly intended to kill as many people as possible. ''We are long overdue.''
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SPLC: Timeline of Terror!!!! [PDF]
Wed, 08 Apr 2015 22:07
16 southern poverty law centerTHE PLOTS A TIMELINE OF TERRORIn the last six years, incidents of domestic terrorism in the United States have been overwhelmingly car-ried out by solitary ''lone wolves'' or leaderless groups of just two people. The Southern Poverty Law Center's study of the nature of these attacks is based on the following 63 incidents, which occurred between April 1, 2009, and Feb. 1, 2015. The list includes both terrorist attacks and foiled terrorist plots, as well as unplanned situations, such as traf¬c stops, where extremists were confronted by law enforce-ment of¬cials and reacted with major violence. The ideologies driving the homegrown extremists in each incident are divided into two broad categories: ''antigovernment,'' meaning the perpetrators see the federal government as their chief enemy and generally subscribe to the tenets of the so-called ''Patriot'' movement; and ''hate,'' which encompasses hatred based on race, religion, gender, and sexual orientation, among others ( jihadist attacks and anti-abortion violence are included in this category). An asterisk in the ''outcome'' ¬eld, which lists the number of people killed, indicates that one or more assailants died during the terrorist incident. If the incident is listed as a ''group'' attack, there were at least two assail-ants involved. The ''perpetrator'' ¬eld includes a few cases where the defendant has been accused, but not convicted, of a crime. The cases that mention ''sovereign citizens'' refer to people with radical anti-government views who believe most laws don't apply to them.
special report | the rise of lone wolf and leaderless resistance terrorism 17APRIL 4, 2009 | IDEOLOGY ANTIGOVERNMENTINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC UNPLANNEDWEAPON FIREARMS | OUTCOME 3 KILLED PERPETRATOR | MALE, 22 | PITTSBURGH, PENNSYLVANIARICHARD ANDREW POPLAWSKI shoots and kills three Pittsburgh police of¬cers responding to a call about a domestic dispute with his mother, who wanted t o k i c k h i m o u t o f h e r h o u s e . Poplawski believed that an attack on gun rights was imminent and that U.S. troops would be used against U.S. citizens; he also thought a secret cabal of Jews ran the United States. Poplawski was heav-ily in¬‚uenced by radio radical Alex Jones, many of whose conspiracy theories he believed.APRIL 25, 2009 | IDEOLOGY ANTIGOVERNMENTINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC UNPLANNEDWEAPON FIREARM | OUTCOME 3 KILLED (INCLUDING ASSAILANT)PERPETRATOR MALE, 28 | CRESTVIEW, FLA. Florida National Guardsman JOSHUA CARTWRIGHT s h o o t s t o d e a t h t wo Okaloosa County, Fla., sheriff 's dep-u t i e s '-- Bu r t L o p e z a n d Wa r re n ''S k i p '' Yo r k , b o t h 4 5 '-- a s t h e y attempt to arrest him on domestic violence charges at a shooting range in Crestview. After ¬‚eeing the scene, Cartwright is fatally shot during a gun bat-tle with pursuing of¬cers. Cartwright's wife later tells investigators that her husband was ''severely disturbed'' that Barack Obama was elected presi-d e n t . He a l s o r e p o r t e d l y b e l i e v e d t h e U. S. g o v e r n m e n t w a s conspiring against h i m . T h e c o u n t y sheriff tells reporters that Cartwright had been interested in joining a mili-tia group.MAY 30, 2009 | IDEOLOGY HATEINCIDENT TYPE GROUP | INCIDENT DYNAMIC PLANNEDWEAPON FIREARMS | OUTCOME 2 KILLEDPERPETRATORS FEMALE, 41; MALES, 34 AND 42 | ARIVACA, ARIZ. SHAWNA FORDE '-- the executive direc-tor of Minutemen American Defense (MAD), an anti-immigrant vigilante group that conducts armed ''citizen patrols'' on Arizona's border with Mexico '-- leads a trio that invades the home of a Latino family, shooting to death a man and his 9-year-old daughter and wounding his wife. Forde believed the man was a narcotics trafficker and wanted to steal drugs and cash to fund her group's activities. Forde is eventually convicted and sen-tenced to death. The triggerman, MAD Operations Director JASON EUGENE ''GUNNY'' BUSH, 34, also is sen-tenced to death, while ALBERT ROBERT GAXIOLA, 42, a local member of MAD, gets life in prison. Authorities say that Bush had ties to the neo-Nazi Aryan Nations in Idaho and that Forde has spoken of recruiting its members. MAY 31, 2009 | IDEOLOGY HATEINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC PLANNEDWEAPON FIREARM | OUTCOME 1 KILLED PERPETRATOR MALE, 51 | WICHITA, KAN.SCOTT ROEDER, a n a n t i - a b o r t i o n ex t re m-i s t w h o w a s i n v o l v e d w i t h t h e antigovernment ''freemen'' move-ment in the 1990s, shoots to death Kansas abortion provider George Tiller as the doctor is serving as an usher in his Wichita church. Adherents of the freemen move-ment describe themselves as sovereign citizens not subject to federal and other laws, and often issue their own vehicle license plates. It was one of those unauthorized homemade plates that led Topeka police to stop Roeder in 1996, when a search of his trunk revealed a pound of gunpowder, a 9-volt bat-
18 southern poverty law centertery wired to a switch, blasting caps and ammunition. A prosecutor in that case called Roeder a ''substan-tial threat to public safety,'' but his conviction in that case is overturned later. In 2010, Roeder is sentenced to life in prison for the Tiller murder.JUNE 10, 2009 | IDEOLOGY HATEINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC PLANNEDWEAPON FIREARM | OUTCOME 1 KILLEDPERPETRATOR MALE, 88 | WASHINGTON, D.C . JAMES VON BRUNN, a longtime neo-Nazi, s h o o t s t o d e a t h s e c u r i t y g u a r d Stephen Johns at the U.S. Holocaust Memorial Museum, but is critically wounded by other of¬cers as he tries to storm into the facility. Von Brunn had a long his-tory in the white supremacist movement. In the early 1970s, he worked at the Holocaust-denying Noontide Press and in subsequent decades he came to know many of the key leaders of the radial right. In 1981, von Brunn used a sawed-off shotgun to attempt unsuccessfully to kidnap members of the Federal Reserve Board in Washington, and served six years in prison as a result. A search of Von Brunn's car after the museum attack turns up a list of apparent targets including the White House, the Capitol, the National Cathedral and The Washington Post. A note left there by von Brunn reads: ''You want my weapons; this how you'll get them '... the Holocaust is a lie '... Obama was created by Jews. Obama does what his Jew owners tell him to do. Jews captured America's money. Jews control the mass media.'' Von Brunn is charged with murder-ing Johns but dies in 2010 while awaiting trial.OCT. 28, 2009 | IDEOLOGY HATEINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC UNPLANNEDWEAPON FIREARM | OUTCOME 1 KILLED *PERPETRATOR MALE, 53 | DEARBORN, MICH. LUQMAN AMEEN ABDULLAH, identi¬ed by authorities as a member of a black Muslim group hoping to create an Islamic state within U.S. borders, is shot dead at a warehouse after he ¬res at FBI agents trying to arrest him on conspir-acy and weapons charges. The FBI says Abdulla encouraged violence against the United States. Several other members of his Sunni Muslim group also are arrested.NOV. 5, 2009 | IDEOLOGY HATEINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC PLANNEDWEAPON FIREARM | OUTCOME 13 KILLEDPERPETRATOR MALE, 39 | FORT HOOD, TEXAS MAJOR NIDAL MALIK HASAN, a U.S. Army psychiatrist, fatally shoots 13 people and injures more than 30 others at Fo r t H o o d . A l t h o u g h t h e U. S . Department of Defense and federal law enforcement agencies later classify the mass murder as an act of workplace violence and not ter-rorism, a series of E-mails between Hasan and Yemen-based imam Anwar al-Awlaki, who had been monitored by U.S. intelligence as a security threat, are found and military colleagues report that they were aware of his growing radicalization. Hassan is eventually convicted of 13 counts of pre-meditated murder and 32 counts of attempted murder and sentenced to death.
special report | the rise of lone wolf and leaderless resistance terrorism 19FEB. 18, 2010 | IDEOLOGY ANTIGOVERNMENTINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC PLANNEDWEAPON AIRPLANE | OUTCOME 2 KILLED *PERPETRATOR MALE, 53 | AUSTIN, TEXASANDREW JOSEPH STACK, ye a r s a f t e r attending a series of meetings of rad-ical anti-tax groups in California, sets ¬re to his own house and then ¬‚ies his single-engine private plane into a building housing Internal Revenue Service (IRS) of¬ces. Stack and an IRS manager are killed and 13 others are injured. Stack leaves behind a long online rant about the IRS and the tax code, politicians and corporations.MARCH 25, 2010 | IDEOLOGY ANTIGOVERNMENTINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC UNPLANNEDWEAPON FIREARM | OUTCOME NO FATALITIESPERPETRATOR MALE, 37 | SUMTER COUNTY, FLA. A man later identi¬ed as BRODY JAMES WHITAKER opens ¬re on two Florida state troopers during a routine traf¬c stop on I-75 in Sumter County. Whitaker ¬‚ees, crashing his vehicle and continuing on foot. He is arrested two weeks later in Connecticut, where he challenges the authority of a judge and declares himself a ''sover-eign citizen'' immune to the laws of the land. Whitaker is later extradited to Florida to face charges of assaulting and ¬‚eeing from a police of¬-cer. In 2012, he is sentenced to life in prison.MARCH 28, 2010 | IDEOLOGY ANTIGOVERNMENTINCIDENT TYPE UNKNOWN | INCIDENT DYNAMIC PLANNEDWEAPON EXPLOSIVES | OUTCOME NO FATALITIESPERPETRATOR UNKNOWN | SPOKANE, WASH. Federal authorities discover a pipe bomb along the perimeter of the federal courthouse in Spokane, Wa s h . , b u t f a i l t o i d e n t i f y o r a r r e s t a p e r p e t r a t o r. T h e bomb was planted during a wave of threats against politicians and other government officials that was triggered by anger over the passage President Obama's health care reforms just ¬ve days earlier.APRIL 15, 2010 | IDEOLOGY ANTIGOVERNMENTINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC PLANNEDWEAPON EXPLOSIVES | OUTCOME NO FATALITIESPERPETRATOR MALE, 30 | CLEVELAND, OHIOMATTHEW FAIRFIELD '-- president of a local chapter of the Oath Keepers, a radical antigovernment organization given to baseless conspiracy theories and largely composed of police and military of¬cers and veterans '-- is indicted on 28 explosives charges, 25 counts of receiving stolen property and one count of possessing criminal tools. Authorities searching Fair¬eld's home also discover a napalm bomb he built and a computer containing child pornography. Fairfield pleads guilty to explosives charges and is sentenced in 2011 to 16 years in prison. That September, prose-cutors drop child porn charges in exchange for Fair¬eld's guilty plea to obstruction of justice. He is sentenced to four additional years in prison, to be served concurrently with his initial sentence.APRIL 30, 2010 | IDEOLOGY ANTIGOVERNMENTINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC PLANNEDWEAPON UNKNOWN | OUTCOME NO FATALITIESPERPETRATOR MALE, 41 | MADISONVILLE, TENN. DARREN HUFF, an Oath Keeper from Georgia, is arrested and charged with planning the armed takeover of a Madisonville, Tenn., courthouse and ''arrest'' of 24 local, state and federal of¬cials. Huff was angry about the arrest the same month of Walter Francis Fitzpatrick III, a leader of the far-right American Grand Jury movement that sought to have grand juries indict President Obama for treason. At the time, several others in the antigovernment movement accuse Huff of white supremacist and anti-Semitic attitudes in
20 southern poverty law centerInternet postings. He is sentenced to four years in federal prison.MAY 10, 2010 | IDEOLOGY HATEINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC PLANNEDWEAPON EXPLOSIVES | OUTCOME 1 KILLED *PERPETRATOR MALE, 46 | JACKSONVILLE, FLA.SANDLIN MATTHEW SMITH sets off a pipe bomb at the rear entrance of the Islamic Center of Northeast Florida. No o n e i s i n j u re d i n t h e a t t a c k . Surveillance videotape from the mosque shows a white man setting the bomb, and law enforcement interest quickly turns to Smith. FBI agents are later tipped off to the man's location in a tent at Glass Mountain State Park in northwest Oklahoma. When police approach Smith, he draws a weapon and is shot and killed by of¬cers. The FBI later reports that Smith's marriage was falling apart and that he was increasingly angry that American soldiers were dying in Iraq and Afghanistan. MAY 20, 2010 | IDEOLOGY ANTIGOVERNMENT INCIDENT TYPE GROUP | INCIDENT DYNAMIC UNPLANNEDWEAPON FIREARM | OUTCOME 4 KILLED *PERPETRATORS MALES, 16 AND 45 | WEST MEMPHIS, ARK. A father-and-son team of sovereign citizens, who believe police have no right to regulate road t r av e l , m u r d e r We s t Memphis, Ark., police officers Robert Brandon Paudert, 39, and Thomas William ''Bill'' Evans, 38, during a routine traffic stop on an I - 4 0 ex i t r a m p. T h e v i o l e n c e begins to unfold when JERRY KANE, 45, starts to argue with the officers o v e r h i s b o g u s vehicle registration paperwork and then pushes Evans into a roadside ditch. At that point, Kane's 16-year-old son, JOSEPH KANE, kills both of¬cers with an AK-47 before the pair ¬‚ees. Authorities catch up with them about 45 minutes later. In the ensu-ing shootout, two more of¬cers are badly wounded and both Kanes are killed. The pair had been trav-eling the country offering seminars in bogus sovereign techniques for avoiding foreclosure and related matters.MAY 20, 2010 | IDEOLOGY HATEINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC PLANNEDWEAPON ARSON | OUTCOME NO FATALITIESPERPETRATOR MALE, 23 | CONNEAUT, OHIORONALD J. PUDDER sets ¬re to the front entrance of the First Azusa Apostolic Faith Church of Go d, a pred omi-nantly African-American church in northeast Ohio. The church is only lightly damaged. Pudder later pleads guilty to intentionally destroying religious property for rea-sons of race. He is sentenced to 51 months in prison. JULY 18, 2010 | IDEOLOGY ANTIGOVERNMENTINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC PLANNEDWEAPON FIREARM | OUTCOME NO FATALITIESPERPETRATOR MALE, 45 | OAKLAND, CALIF. BYRON WILLIAMS, a n u n e m p l o y e d parolee with two bank robbery convic-tions who is apparently enraged at liberals and what he sees as the ''left-wing agenda'' of Congress, opens ¬re on California Highway Patrol troopers after they pull him over. No one is killed, but two troopers are slightly injured. Williams, who is shot in the arms and legs, later tells authorities that he was on his way to carry out an attack of¬ces of the American Civil Liberties Union and the Tides Foundation, a liberal organiza-tion that, although little known to most Americans, had been repeatedly pilloried by then-Fox News host Glenn Beck. In 2014, a jury convicts Williams of four
special report | the rise of lone wolf and leaderless resistance terrorism 21counts of premeditated attempted murder of a peace of¬cer and three counts of being a felon in possession of a ¬rearm. He is sentenced to 401 years in prison.JULY 21, 2010 | IDEOLOGY ANTIGOVERNMENTINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC PLANNEDWEAPON FIREARM | OUTCOME 1 KILLEDPERPETRATOR MALE, 64 | CUMBERLAND COUNTY, PENN. Attorney Todd Getgen is shot to death at a gun range in Cumberland County, Penn., and his weapon, a silenced AR-15 ri¬‚e, is stolen. Nine days later, a u t h o r i t i e s a r r e s t p r i s o n g u a r d RAYMOND PEAKE, saying Peake was trying to accumu-late weapons for an unnamed organization that intended to overthrow the government. Fellow prison guard Thomas Tuso is also arrested for help-ing Peake hide Getgen's custom-built weapon. Peake is sentenced in 2012 to life in prison. The next year, Tuso is sentenced to between 11 and 23 months in prison.AUG. 17, 2010 | IDEOLOGY ANTIGOVERNMENTINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC PLANNEDWEAPON FIREARM | OUTCOME 1 KILLED *PERPETRATOR MALE, 29 | MCKINNEY, TEXASPAT R I C K G R AY S H A R P sets ¬re to his truck outside the McKinney Public Safety Building and then begins ¬ring at ¬rst responders from a makeshift sniper's nest. Police estimate Sharp ¬red more than 100 rounds at the building, which houses the town's police department. McKinney of¬cers ¬re back at Sharp and, when they later close in on his position, ¬nd him dead of gunshot wounds.AUGUST 30, 2010 | IDEOLOGY HATEINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC PLANNEDWEAPON FIREARM | OUTCOME NO FATALITIESPERPETRATOR MALE, 52 | SPOKANE, WASH. White supremacist WAYDE LYNN KURT is arrested in Spokane on federal gun and forgery charges. Authorities later release audio recordings to support their allegation that he was planning a terrorist attack that he called his ''¬nal solution'' and which included assassinating President Obama. Kurt, a convicted felon who is associated with neo-Nazis and racist Odinists, is sentenced in 2012 to 13 years in prison on ¬rearms and false identi¬cation convictions after federal prosecu-tors seek and receive a ''terrorism enhancement'' to his sentence.SEPT. 2, 2010 | IDEOLOGY HATEINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC PLANNEDWEAPON EXPLOSIVES | OUTCOME NO FATALITIESPERPETRATOR MALE, 37 | MADERA, CALIF. A pipe bomb is thrown through the w i n d o w o f a c l o s e d P l a n n e d Parenthood clinic along with a note that reads, ''Murder our children? We have a 'choice' too.'' The note is signed ANB, apparently short for the American Nationalist Brotherhood. Six months later, law enforcement officials arrest school bus driver DONNY EUGENE MOWER, who allegedly also threat-ened a local Islamic center and has the word ''Peckerwood,'' a white supremacist reference, tat-tooed on his chest. Mower confesses to the attack and pleads guilty to arson, damaging religious property and violating the Freedom of Access to Clinics Act. He is sentenced in 2012 to ¬ve years in prison and three years of supervised release.
22 southern poverty law centerSEPT. 7, 2010 | IDEOLOGY HATEINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC PLANNEDWEAPON EXPLOSIVES | OUTCOME NO FATALITIESPERPETRATOR MALE, 26 | CONCORD, N.C. The FBI arrests 26-year-old JUSTIN CARL MOOSE, a self-described ''freedom ¬ghter'' and ''Christian counterpart to Osama bin Laden,'' for allegedly plan-ning to blow up a North Carolina abortion clinic. After earlier receiving tips that Moose was posting threats of violence against abor-tion providers and information about explosives on his Facebook page, the FBI set up a sting operation to capture him. Moose ultimately pleads guilty to distributing information on manufacturing and use of an explosive and is sentenced to 30 months in prison. He is released in 2012.SEPT. 17, 2010 | IDEOLOGY ANTIGOVERNMENTINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC UNPLANNEDWEAPON FIREARM | OUTCOME NO FATALITIESPERPETRATOR MALE, 55 | WEST ODESSA, TEXASVICTOR DEWAYNE WHITE, a so - called sov-ereign citizen, shoots and wounds three people, including two sheriff 's deputies, before surrendering at the end of a 22-hour standoff. The inci-dent began when an oil company employee went to White's property with Ector County Sheriff 's Deputy Ricky Tijerina and Sgt. Steve McNeil to access an oil well to which the company owned rights. White '-- who had ties to the separatist Republic of Texas, which claims Texas is a sover-eign nation never legally annexed by the United States '-- eventually surrenders and is charged with three counts of attempted capital murder of a peace of¬cer, one count of attempted capital murder, and aggravated assault. He is sentenced to life in prison in 2012. NOV. 17, 2010 | IDEOLOGY ANTIGOVERNMENT INCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC UNPLANNEDWEAPON FIREARM | OUTCOME 1 KILLED *PERPETRATOR MALE, 47 | RIGGINS, IDAHOCURTIS SCRIVER, a sovereign citizen facing charges of menacing with a deadly weapon, disorderly conduct and two counts of possession of a danger-ous weapons, is killed in a gun battle in Riggins, Idaho, that begins after law enforcement of¬cers try to arrest him for sending a threatening letter to the court. In the letter, Scrivner had warned that police had violated his rights ''protected by the sec-ond and fourth amendments to the Constitution,'' and added, ''I know this as I have studied law as an ex-cop. Your court and attorneys should know this, as it is your job to know.''NOV. 26, 2010 | IDEOLOGY HATEINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC PLANNEDWEAPON EXPLOSIVES | OUTCOME NO FATALITIESPERPETRATOR MALE, 19 | PORTLAND, ORE.MOHAMED OSMAN MOHAMUD is arrested i n a n F B I s t i n g o p e r a t i o n a f t e r attempting to set off what he thought was a car bomb at a Christmas tree lighting. He is charged with and even-tually convicted of attempting to use a weapon of mass destruction, although his attorney claims he was entrapped. Mohamud is sentenced in 2014 to 30 years in federal prison.NOV. 28, 2010 | IDEOLOGY HATEINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC PLANNEDWEAPON ARSON | OUTCOME NO FATALITIESPERPETRATOR MALE, 24 | CORVALLIS, ORE. CODY SETH CRAWFORD allegedly fire-bombs the Salman Alfarisi Islamic Center in Corvallis just two days after a former Oregon State University stu-dent was arrested in a plot to detonate
special report | the rise of lone wolf and leaderless resistance terrorism 23a car bomb during Portland's annual Christmas tree lighting. Crawford had reportedly ranted about Muslims and describes himself as a Christian war-rior after the arson. But complex legal questions surrounding Crawford's mental health and actions of the prosecution delay the scheduling of a trial.JAN. 14, 2011 | IDEOLOGY HATEINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC PLANNEDWEAPON EXPLOSIVES | OUTCOME NO FATALITIESPERPETRATOR MALE, 28 | APACHE JUNCTION, ARIZ.Federal agents arrest JEFFERY HARBIN, a member of the neo-Nazi National Socialist Movement, for building homemade grenades and pipe bombs that he intended to supply to anti-im-migrant groups patrolling the Arizona-Mexico border. A prosecutor says that Harbin constructed the devices, using model rocket engines and alumi-num powder, ''in such a way as to maximize human carnage.'' In September 2011, Harbin '-- the son of Jerry Harbin, a Phoenix-area activist with past ties to the neo-Nazi National Alliance and the racist Council of Conservative Citizens '-- pleads guilty to making and transporting bombs and is sentenced to two years in prison.JAN. 14, 2011 | IDEOLOGY HATEINCIDENT TYPE GROUP | INCIDENT DYNAMIC PLANNEDWEAPON FIREBOMB | OUTCOME NO FATALITIESPERPETRATOR MALES, 32 AND 37 | HARDY, ARK. JASON WALTER BARNWELL, 37, of Evening Shade, Ark., and GARY DON DODSON of Waldron throw a Molotov cocktail through the window of an interracial couple's home in Hardy. Barnwell, described as a leader of a ''combat division'' of a neo-Nazi skinhead gang, pleads guilty to federal civil rights and ¬rearms charges in 2011 and is sen-tenced to 20 years in prison. Dodson pleads guilty to similar charges later that year and is eventually sentenced to 15 years in prison.JAN. 17, 2011 | IDEOLOGY HATEINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC PLANNEDWEAPON EXPLOSIVES | OUTCOME NO FATALITIESPERPETRATOR MALE, 36 | SPOKANE, WASH.A sophisticated improvised explosive device is discovered in a backpack p l a c e d o n t h e ro u t e o f a Ma r t i n Luther King Jr. Day parade that included some 1,500 participants. Police bomb technicians manage to defuse the device, which eventually yields forensic clues that lead of¬cials to KEVIN WILLIAM HARPHAM. Harpham is a one-time member of the neo-Nazi National Alliance and has posted more than 1,000 messages to the neo-Nazi Vanguard News Network since 2004 and contributed articles to the white suprem-acist Aryan Alternative tabloid. Harpham is accused of attempted use of a weapon of mass destruction, and in December 2011 pleads guilty to that charge and another of planting a bomb as part of a hate crime. He is sentenced to 32 years in prison.MARCH 10, 2011 | IDEOLOGY ANTIGOVERNMENTINCIDENT TYPE GROUP | INCIDENT DYNAMIC PLANNEDWEAPON FIREARMS | OUTCOME NO FATALITIESPERPETRATORS MALES, 26, 36 AND 55; FEMALE, 64 | FA I R BA N KS , A L AS KASeveral members of the antigovernment Alaska Peacemakers Militia, including its 26-year-old leader, FRANCIS SCHAEFFER COX, are arrested and charged with plot-ting to kill or kidnap state troopers and a Fairbanks judge. The group already has a large cache of weapons, including a .50-caliber machine gun, gre-nades and a grenade launcher. Cox, who had earlier identi¬ed himself as a sovereign citizen, is convicted in 2012 of 12 counts, including conspiracy to kill a judge and law enforcement of¬cials. He is sentenced the next year to almost 26 years in federal prison. A couple, LONNIE and KAREN VERNON, plead guilty to simi-lar charges and are sentenced to almost 25 years and 12 years, respectively. Another member of the group, COLEMAN BARNEY, is found guilty of weapons charges and sentenced to ¬ve years in federal prison.
24 southern poverty law centerMAY 11, 2011 | IDEOLOGY HATEINCIDENT TYPE GROUP | INCIDENT DYNAMIC PLANNEDWEAPON FIREARMS | OUTCOME NO FATALITIESPERPETRATOR MALES, 20 AND 26 | NEW YORK, N.Y.AHMED FERHANI, a 2 6 - y e a r-o l d a s p i r i n g f a s h i o n model who once sold cosmetics at Saks Fifth Avenue, and taxi service dispatcher MOHAMED MAMDOUH are arrested after purchasing three semiautomatic pistols, 150 rounds of ammunition and a hand grenade from an under-cover police of¬cer. The pair, who plotted to blow up synagogues across New York City, are charged with second-degree conspiracy as a crime of terror-ism, second-degree conspiracy as a hate crime and second-degree criminal possession of a weapon as a crime of terrorism. Of¬cials say the two have no known connection to Islamic extremist groups. Both men are convicted and, in 2013, Ferhani is sentenced to 10 years in prison, while Mamdouh gets ¬ve years.MAY 14, 2011 | IDEOLOGY HATEINCIDENT TYPE GROUP | INCIDENT DYNAMIC PLANNEDWEAPON ARSON | OUTCOME NO FATALITIESPERPETRATOR 3 MALES, AGES UNKNOWN | HOUSTON, TEXASThree masked men break into the Madrasah Islamiah, an Islamic center in Houston, and douse prayer rugs with gasoline in an apparent attempt to burn the center down. Images of the men are captured on sur-veillance cameras, but they are not identi¬ed. The ¬re is put out before doing major damage.MAY 25, 2011 | IDEOLOGY HATEINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC PLANNEDWEAPON FIREARM | OUTCOME NO FATALITIESPERPETRATOR MALE, 63 | MADISON, WIS. A man with a long history of menac-ing abortion clinics is arrested on weapons charges after he accidentally shoots a pistol through the door of a motel room. When confronted, RALPH LANG tells police he had planned to kill a doctor and workers at a nearby Planned Parenthood clinic. Lang is sentenced to 10 years in prison in 2013.JUNE 12, 2011 | IDEOLOGY ANTIGOVERNMENTINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC PLANNEDWEAPON FIREARM | OUTCOME NO FATALITIES PERPETRATOR MALE, 50 | LOLO, MONT. Longtime militia activist DAV I D BURGERT '-- a former convicted burglar who once led a group that planned to assassinate of¬cials and later spent time in prison for being a felon in pos-session of a weapon '-- leads Missoula County sheriff 's deputies on a car chase when they come to investigate reports of his car being parked for a lengthy time at a picnic area near Lolo. After sev-eral miles, Burgert pulls over and begins ¬ring at the deputies before ¬‚eeing on foot into the woods. He escapes his pursuers and is still a fugitive as of early 2015.JULY 21, 2011 | IDEOLOGY HATEINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC UNPLANNEDWEAPON FIREARM | OUTCOME NO FATALITIESPERPETRATOR MALE, 48 | HURST, TEXASSelf- described ''Moorish national'' JOSEPH M. TESI o p e n s f i r e o n a Colleyville police officer who fol-lowed him to Hurst, but instead is shot himself, in the face and the foot,
special report | the rise of lone wolf and leaderless resistance terrorism 25by the officer. (Virtually all so-called Moorish nationals are black, but Tesi is white.) The of¬cer had recognized Tesi as the man who had sent a court a note threatening ''deadly force'' against of¬-cials in a long-running dispute over traf¬c tickets. In his writings, Tesi used the obscure language favored by sovereign citizens, arguing that police had no right to regulate his travel. He is found guilty of aggravated assault on a public servant in 2012 and sentenced to 35 years in state prison.OCT. 5, 2011 | IDEOLOGY HATEINCIDENT TYPE GROUP | INCIDENT DYNAMIC PLANNEDWEAPON FIREARMS | OUTCOME 4 KILLEDPERPETRATOR MALE, 31; FEMALE, 24EVERETT, WASH./LAFAYETTE, ORE./EUREKA, CALIF. W h i t e s u p r e m a c i s t ex-convict DAVID ''JOEY'' PEDERSEN and his girl-friend HOLLY ANN GRIGSBY a r e a r r e s t e d i n California after a murderous rampage in three states. At the time, Grigsby tells police that she and Pedersen ''were on their way to Sacramento to kill more Jews.'' The ¬rst to be killed were Pedersen's father and stepmother in Everett, followed by another man in Oregon, who was slain because the couple thought he was Jewish. An African-American man was also found shot to death in Eureka. Earlier, Pederson served time for threat-ening to kill the federal judge who handled the Ruby Ridge, Idaho, case of white supremacist Randy Weaver. Pedersen is eventually sentenced to four life terms without the possibility of parole, while Grigsby is handed a single life sentence.NOV. 1, 2011 | IDEOLOGY ANTIGOVERNMENTINCIDENT TYPE GROUP | INCIDENT DYNAMIC PLANNEDWEAPON EXPLOSIVES, RICIN | OUTCOME NO FATALITIESPERPETRATOR MALES, 65, 67, 68 AND 73 | CLEVELAND, GA./TOCCOA, GA.Four members o f a n o r t h Georgia mili-tia are arrested i n a p l o t t o bomb federal buildings, attack Atlanta and other cities with deadly ricin, and murder law enforcement of¬cials. The men '-- FREDERICK THOMAS, 73, SAMUEL J. CRUMP, 68, DAN ROBERTS, 67, and RAY H. ADAMS, 65 '-- discussed ''taking out'' a list of of¬cials to ''make the country right again'' and scouted buildings in Atlanta to bomb. Authorities say the plot was inspired by an online novel, Absolved, written by longtime Alabama militiaman Mike Vanderboegh. Thomas, the ringleader, and Roberts plead guilty in 2012 to charges of conspiring to pos-sess explosives and ¬rearms and are each sentenced to ¬ve years in federal prison for conspiring to obtain an unregistered explosive device. Crump and Adams are convicted in January 2014 of conspiring to pro-duce a toxic agent to poison government of¬cials, and are each sentenced later in the year to 10 years in prison followed by ¬ve years of supervised release.DEC. 5, 2011 | IDEOLOGY ANTIGOVERNMENTINCIDENT TYPE GROUP | INCIDENT DYNAMIC PLANNEDWEAPON FIREARMS | OUTCOME 2 KILLEDPERPETRATORS MALES, 19, 25, 25 AND 26 | FORT STEWART, GA. Four Army soldiers at Fort Stewart, Ga., later identi¬ed as members o f t h e t e r r o r g r o u p F o r e v e r E n d u r i n g , Always Ready (FEAR), participate in the mur-d e r o f 1 9 - y e a r - o l d f o r m e r s o l d i e r a n d FEAR member Michael Roark and his 17-year-
26 southern poverty law centerold girlfriend, Tiffany York. The four are arrested ¬ve days later, after the victims' bodies are discov-ered in a stand of dense woods. The two were killed because FEAR leader ISAAC AGUIGUI, 19, feared Roark would talk about the group's plans to take over the Army base, overthrow the government, assassinate a future president, blow up a dam and poison the apple crop in the state of Washington. Pfc. Aguigui funded the group, buying $87,000 in weapons and a large amount of drugs with a $500,000 insurance payment he received after the death of his pregnant wife. PFC. MICHAEL BURNETT pleads guilty and agrees to testify against his FEAR comrades. In April 2013, the Army charges Aguigui with killing his wife, whose death was initially ruled accidental, and their unborn child. In July 2013, Aguigui pleads guilty in the murders of York and Roark, and is sen-tenced to life in prison. He subsequently is convicted in military court of the murder of his wife and is sentenced to life in prison without the possibility of parole. Two other soldiers, PVT. CHRISTOPHER SALMON and SGT. ANTHONY PEDEN, plead guilty in 2014 and receive life sentences.DEC. 18, 2011 | IDEOLOGY ANTIGOVERNMENTINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC UNPLANNEDWEAPON FIREARM | OUTCOME 2 KILLED *PERPETRATOR MALE, 58 | WASHINGTON, PA. Survivalist ELI FRANKLIN MYERS III shoots two Pennsylvania state troop-ers after they pull him over and cite him for expired vehicle registration a n d n o p r o o f o f i n s u r a n c e . Immediately after being cited, Myers gets out of his car and begins ¬ring at the two of¬cers. John David Dryer, a 46-year-old part-time officer, is killed in the encounter, and a second of¬cer, Robert V. Caldwell III, is badly injured. Myers, a former police of¬cer himself, is also killed in the shootout. APRIL 1, 2012 | IDEOLOGY HATEINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC PLANNEDWEAPON EXPLOSIVES | OUTCOME NO FATALITIESPERPETRATOR MALE, 50 | GRAND CHUTE, WIS.Using a homemade device fashioned from a plastic bottle ¬lled with incen-diary chemicals, FRANCIS G. GRADY bombs the Grand Chute Planned Parenthood clinic. No one was injured, and Grady is arrested the next day. In early 2013, Grady is con-victed and sentenced to 11 years in prison. APRIL 6, 2012 | IDEOLOGY HATEINCIDENT TYPE GROUP | INCIDENT DYNAMIC PLANNEDWEAPON FIREARMS | OUTCOME 3 KILLEDPERPETRATOR MALES, 19 AND 32 | TULSA, OK. Tw o w h i t e m e n , JAKE ENGLAND, 1 9, a n d h i s friend ALVIN WATTS, drive through black neigh-borhoods in northern Tulsa randomly shooting ¬ve African Americans, three of whom die. The spree, which comes to be known as the ''Good Friday Shootings,'' coincides with the second anniversary of the death of England's father, who was killed by a black man in the same area. In 2013, both men plead guilty, avoiding the possibil-ity of the death penalty, and are each sentenced to life in prison without the possibility of parole. APRIL 17, 2012 | IDEOLOGY HATEINCIDENT TYPE GROUP | INCIDENT DYNAMIC PLANNEDWEAPON FIREBOMBS | OUTCOME NO FATALITIESPERPETRATOR MALES, 31 AND 42 | MENDOTA HEIGHTS, MINN. JOSEPH BENJAMIN THOMAS and S A M U E L J A M E S JOHNSON o f Me n d o t a Heights are indicted on federal weapons and drug charges after a probe of their alleged plans to
special report | the rise of lone wolf and leaderless resistance terrorism 27create an ''Aryan Liberation Movement'' and attack minorities, leftists and government officials. Prosecutors say Thomas, 42, also planned to attack the Mexican consulate in St. Paul with a truck loaded with ¬‚aming barrels of oil and gasoline. Johnson, a former leader of the neo-Nazi National Socialist Movement with prior convictions for armed crimes, was scouting for a training compound in Illinois or Minnesota and seeking to recruit others into his group, court papers say. In the end, Johnson pleads guilty to being a felon in possession of weapons and is sentenced to 15 years in prison. Thomas pleads to intent to distribute 50 grams of methamphetamine and, in 2013, is sentenced to 10 years in prison.JUNE 17, 2012 | IDEOLOGY ANTIGOVERNMENTINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC PLANNEDWEAPON EXPLOSIVES | OUTCOME NO FATALITIESPERPETRATOR MALE, 33 | PLANO, TEXAS ANSON CHI is seriously injured when he detonates a bomb in an effort to destroy an Atmos Energy natural gas pipeline in Plano. Chi is an avid tax protester who has posted numerous videos, statements and rants on the Internet about the alleged evils of the Federal Reserve, the IRS, President Obama and the federal government. He had been a fugitive since 2009, when he violated probation in California on a weapons charge. Chi pleads guilty in 2013 to possessing an unregistered explosive and malicious use of an explosive and is sentenced to 22 years in prison.AUG. 5, 2012 | IDEOLOGY HATEINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC PLANNEDWEAPON FIREARM | OUTCOME 7 KILLED *PERPETRATOR MALE, 40 | OAK CREEK, WIS. Longtime neo-Nazi skinhead WADE MICHAEL PAGE opens ¬re with a 9 mm handgun inside a Sikh temple, kill-i n g s i x p e o p l e a n d c r i t i c a l l y wounding three, including a police of¬cer. Wounded by police, Page then shoots and kills himself at the scene. Page, an Army veteran who was discharged in 1998 for ''patterns of mis-conduct,'' was a ''patched'' member of the Northern Hammerskins, a division of the violent racist skin-head group Hammerskin Na t i o n . He wa s a l s o a well-known ¬xture on the white power music scene, playing in the band End Apathy and several others.AUG. 16, 2012 | IDEOLOGY ANTIGOVERNMENTINCIDENT TYPE GROUP | INCIDENT DYNAMIC UNPLANNEDWEAPON FIREARMS | OUTCOME 2 KILLEDPERPETRATOR MALES, 22, 24, 28 AND 44; FEMALES, 23 AND 37 | LAPLACE, LA. Seven people, six of t h e m d e e p l y e n m e s h e d i n t h e sovereign citizens m o v e m e n t , allegedly ambush a n d m u r d e r S t . Jo h n t h e Ba p t i st Parish sheriff 's deputies Brandon Nielsen, 34, and Jeremy Triche, 27. The attack comes in a trailer park about 30 miles from New Orleans, after deputies pursue them there from a nearby oil re¬nery, where they are sus-pected of shooting another deputy who was working as an off-duty guard. Authorities arrest the group's leader, TERRY LYN SMITH, 44, Smith's wife, CHANEL SKAINS, and his sons, DERRICK SMITH and BRIAN SMITH. Others are BRITTANY KEITH, KYLE DAVID JOEKEL and TENIECHA BRIGHT, 21. Bright is released when of¬cials decide she is telling the truth about having merely hitched a ride with the Smith clan. Eventually, Skains and Keith plead guilty as accessories and agree to testify against the others. Derrick Smith pleads to the same charge, receiving a ¬ve-year sentence, and also to being a felon in possession of a weapon, getting another 12 years as a result. Brian Smith and Joekel are charged with capital murder and Terry Smith is charged with being a principal to attempted ¬rst-degree murder.
28 southern poverty law centerSEPT. 4, 2012 | IDEOLOGY ANTIGOVERNMENTINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC UNPLANNEDWEAPON FIREARM | OUTCOME 2 KILLED *PERPETRATOR MALE, 36 | ALAMO, CALIF. CHRISTOPHER LACY shoots California H i g h w a y Pa t r o l o f f i c e r Ke n y o n Yo u n g s t r o m a t c l o s e r a n g e a f t e r t h e of¬cer stops Lacy's vehicle, which had an obstructed license plate, on I-680 near Alamo. Lacy is fatally shot by another trooper, and Youngstrom dies the next day. An investigation into Lacy's background reveals a large amount of antigovernment sovereign citizens literature on sev-eral computers at his home.DEC. 21, 2012 | IDEOLOGY HATEINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC UNPLANNEDWEAPON FIREARMS | OUTCOME NO FATALITIESPERPETRATOR MALE, 47 | BOWLING GREEN, OHIOFBI agents arrest RICHARD SCHMIDT, the owner of a sporting goods store in Bowling Green, for trafficking in counterfeit goods and discover a cache of 18 weapons in his home and store, including AR-15 assault ri¬‚es, 9 mm and Sig Sauer pistols and shotguns, and more than 40,000 rounds of ammunition. Schmidt is unable to own the weapons legally because he is a felon who served 13 years for murdering a Latino man and wounding two others in a 1989 traffic dispute. Of¬cials also ¬nd evidence of Schmidt's neo-Nazi views, including video and Nazi paraphernalia, and the Anti-Defamation League identi¬es him as a l o n g t i m e m e m b e r o f t h e n e o - Na z i Na t i o n a l Alliance. Authorities also discover a notebook they say Schmidt was using to track Detroit-area Jewish and African-American leaders, apparently as a pre-lude to some kind of attack. Schmidt is indicted in Toledo in January 2013 on three federal counts of possessing illegal ¬rearms, body armor and ammu-nition, and one count of traf¬cking in counterfeit goods. He pleads guilty in July of that year to vio-lating federal ¬rearms laws and is later sentenced to nearly six years in prison.APRIL 15, 2013 | IDEOLOGY HATEINCIDENT TYPE GROUP | INCIDENT DYNAMIC PLANNEDWEAPON EXPLOSIVES | OUTCOME 5 KILLED *PERPETRATOR MALES, 19 AND 26 | BOSTONDZHOKHAR and TAMERLAN TSARNAEV, brothers from Chechnya, allegedly set off bombs made from pressure cookers at the ¬nish line of the Boston Marathon, killing three peo-ple and injuring more than 260 others, including more than a dozen who must have limbs amputated. Several days later, after the FBI releases pictures of the Tsarnaevs taken from surveillance video along the marathon route, the brothers allegedly ambush and kill a Massachusetts Institute of Technology police of¬cer. Tamerlan Tsarnaev is shot multiple times during that April 18 ¬re¬ght on and dies after his brother runs him over with a stolen SUV while escaping. A day later, Dzohkhar Tsarnaev is found hiding in a boat parked in the backyard of a residence in Watertown, Mass. He is charged with 30-plus counts of homegrown terrorism, including the use of a weapon of mass destruction and malicious destruction of property resulting in death. According to interrogation reports, Dzhokhar claims he and his brother were self-radicalized in their extremist Islamic beliefs and angered by the U.S.-led wars in Iraq and Afghanistan. His trial is set for early 2015.
special report | the rise of lone wolf and leaderless resistance terrorism 29MAY 3, 2013 | IDEOLOGY ANTIGOVERNMENTINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC UNPLANNEDWEAPON EXPLOSIVES | OUTCOME NO FATALITIESPERPETRATOR MALE, 24 | MONTEVIDEO, MINN. BUFORD ''BUCKY'' ROGERS of Montevideo, a self-proclaimed member of the Black Snake Militia, is arrested when agents ¬nd homemade bombs and ¬rearms at his father's home. It is at least the third time Rogers has been arrested. Profanity-laced postings on Rogers' Facebook page, beginning in June 2011, express his antigov-ernment views. ''The NOW [New World Order] has taken all your freedoms the right to bear arms freedom of speech [sic] freedom to the press,'' one of his postings says. He pleads guilty to two counts of weapons violations in early 2014 and is subse-quently sentenced to three years and four months in prison.JUNE 18, 2013 | IDEOLOGY HATEINCIDENT TYPE GROUP | INCIDENT DYNAMIC PLANNEDWEAPON RADIATION DEVICE | OUTCOME NO FATALITIESPERPETRATOR MALES, 49 AND 54 | PROVIDENCE, N.Y./STOCKPORT, N.Y. GLENDON SCOTT CRAWFORD, 49, and ERIC J. FEIGHT are arrested at their homes i n u p st a t e Ne w Yo r k after a year-long inves-tigation and charged with conspiracy to provide material support to terrorists for use of a weapon of mass destruction. Crawford is a member of the United Northern and Southern Knights of the Ku K l u x K l a n a n d a n i n d u st r i a l m e c h a n i c w i t h General Electric; Feight is an outside contractor for the company with engineering skills. Of¬cials say the two men, who call themselves ''The Guild,'' are well on the way to building a truck-borne radi-ation weapon that can be turned on remotely and that they hoped to see used in the mass murder of Muslims and others. Crawford allegedly refers to the device as ''Hiroshima on a light switch.'' The men are arrested after allegedly seeking funding for the weapon from Jewish groups and the Loyal White Knights of the Ku Klux Klan without suc-cess. In 2014, Crawford is indicted for conspiring to use a weapon of mass destruction and related charges, while his alleged accomplice is report-edly in talks about a plea agreement that would involve testifying against Crawford. AUG. 18, 2013 | IDEOLOGY ANTIGOVERNMENTINCIDENT TYPE GROUP | INCIDENT DYNAMIC PLANNEDWEAPON UNKNOWN | OUTCOME NO FATALITIESPERPETRATOR MALE, 42; FEMALE, 67 | LAS VEGAS DAVID ALLEN BRUTSCHE and a woman described as Brutsche's roommate, DEVON CAMPBELL NEWMAN, a r e a r r e s t e d i n L a s Vegas after a months-long investigation into an alleged plot to kidnap and execute police of¬cers. Both Brutsche, a convicted felon and registered sex offender, and Newman consider themselves sovereign citizens and have conducted recruiting seminars on sovereign ideology, officials say. Authorities say they intended to kidnap a police of¬cer at random, detain the of¬cer in a crude jail in a vacant house, ''try'' the officer in a ''com-mon-law'' court, then execute the of¬cer. The two are charged with felony conspiracy to commit murder, conspiracy to commit kidnapping and attempted kidnapping. Newman pleads guilty in December 2013 to conspiracy to commit false imprisonment, a misdemeanor, and is sentenced to a year of probation and ordered to have no con-tact with Brutsche. Brutsche, who renounces sovereign citizen ideology during court proceed-ings, pleads guilty in February 2014 to conspiracy to kidnap police of¬cers and receives ¬ve years of probation. In a separate case involving failure to register as a sex offender, he receives 188 days in jail in addition to time served.
30 southern poverty law centerNOV. 1, 2013 | IDEOLOGY ANTIGOVERNMENTINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC PLANNEDWEAPON FIREARM | OUTCOME 1 KILLEDPERPETRATOR MALE, 23 | LOS ANGELESPAU L A N T H O N Y C I A N C I A allegedly opens fire at Los Angeles International Airport, killing U.S. Transportation S e c u r i t y Ad m i n i s t ra t i o n o f f i c e r Gerardo Hernandez at a security checkpoint and injuring six others. Police say he was carrying a bag packed with a semiautomatic .223-cal-iber Smith & Wesson M&P-15 ri¬‚e, ¬ve 30-round magazines and hundreds of additional rounds of ammunition. When he is arrested, sources say, Ciancia is carrying a note mentioning ''¬at currency'' and the New World Order, both topics of high inter-est to the militia movement. Ciancia is charged with the murder of a federal of¬cer and committing vio-lence at an international airport, with prosecutors saying they will seek the death penalty.MARCH 27, 2014 | IDEOLOGY ANTIGOVERNMENTINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC PLANNEDWEAPON EXPLOSIVES | OUTCOME NO FATALITIESPERPETRATOR MALE, 38 | KATY, TEXASROBERT JAMES TALBOT JR. is arrested in Katy by FBI agents who say he was about to rob an armored car and kill its driver. The FBI opened an investi-gation into Talbot 's activities in August 2013 after learning of his desire to recruit others into terrorist activities. Of¬cials say Talbot was plotting to use C-4 explosives and weapons to rob banks and armored cars, kill police of¬cers, and blow up government buildings and crowded mosques. Talbot is also behind a Facebook page called ''American Insurgent Movement,'' on which he posted antigovernment screeds, called for vio-lence against public officials, and ranted about Muslims and LGBT people. In October 2014, Talbot pleads guilty to federal charges of attempted inter-ference with commerce by robbery and solicitation to commit a crime of violence. He faces up 20 years on the ¬rst charge and another 10 on the second charge when he is sentenced.APRIL 13, 2014 | IDEOLOGY HATEINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC PLANNEDWEAPON FIREARM | OUTCOME 3 KILLEDPERPETRATOR MALE, 73 | OVERLAND PARK, KAN. FRAZIER GLENN MILLER (aka Frazier Glenn Cross), a longtime racist and anti- Semite, is arrested after he allegedly opens ¬re at a Jewish com-m u n i t y c e n t e r a n d a J e w i s h retirement community in a suburb of Kansas City. Three people are killed, including a 14-year-old Eagle Scout and his grandfather, all of them Christians. Miller is charged with capital murder and three counts of attempted murder. Miller, a retired Army veteran and Green Beret, is the founder and former leader of both the Carolina Knights of the Ku Klux Klan and the White Patriot Party, which he ran as paramilitary organizations in the 1980s. He was successfully sued by the SPLC for operating an illegal paramilitary organization and for using intimidation tactics against African Americans. Miller went underground in 1987 after he violated the court settlement and was facing criminal contempt charges. He was later caught and served three years in federal prison on weap-ons charges in connection with plans to commit robberies and assassinate SPLC co-founder Morris Dees. As part of a plea deal, he testified against other Klan members in a 1988 sedition trial.
special report | the rise of lone wolf and leaderless resistance terrorism 31MAY 23, 2014 | IDEOLOGY HATEINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC PLANNEDWEAPON FIREARMS | OUTCOME 7 KILLED *PERPETRATOR MALE, 22 | ISLA VISTA, CALIF. ELLIOT RODGER goes on a killing spree in Isla Vista, Calif., shortly after uploading a video to YouTube titled ''Elliot Rodger 's Retribution'' and E-mailing what was subsequently described as his manifesto, titled ''My Twisted Wo r l d ,'' t o a n u m b e r o f p e o p l e. I n t h e v i d e o a n d m a n-ifesto, he lays out the reasons behind the killings: his frustration over not being able to ¬nd a girlfriend, his hatred of women, and his contempt for racial minorities and interracial couples. Rodger stabs to death three men in his apartment before driving to a nearby sorority house, where he kills two sorority members, and a delicatessen, where he shot to death another student. He then speeds through Isla Vista, shooting at pedestrians before exchanging gun¬re with police. Rodger crashes his car and police ¬nd him dead with a self-in¬‚icted gunshot wound to the head. Rodger had e x p r e s s e d h i s v i o l e n t hatred for women earlier in several postings at a m i s o g y n i s t i c w e b s i t e called PUAHate.JUNE 1, 2014 | IDEOLOGY HATEINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC PLANNEDWEAPON FIREARMS | OUTCOME NO FATALITIESPERPETRATOR MALE, 35 | WILLISTON, FLA. DUSTIN HAROLD HEATHMAN is arrested after ¬ring more than 50 rounds at police officers outside his home. Foll owi ng a se arc h, p oli ce fo und ne o -Nazi literature as well as a cache of guns and ammunition. Following his arrest, Heathman reportedly makes suicidal comments and expresses antigovernment views similar to those of a sovereign citizen. He is charged with 10 counts of attempted murder. JUNE 6, 2014 | IDEOLOGY ANTIGOVERNMENTINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC PLANNEDWEAPON FIREARMS, EXPLOSIVES | OUTCOME 1 KILLED *PERPETRATOR MALE, 48 | CUMMING, GA. Armed with multiple guns and explo-sives, DENNIS MARX, a man described by law enforcement as an antigovern-ment sovereign citizen, enters the Forsyth County Courthouse in subur-ban Atlanta and opens fire. Marx is reportedly wearing a bulletproof vest and a gas mask. As he approaches the building, he throws out homemade smoke grenades that brie¬‚y cover his approach with orange smoke. He shoots one of¬cer in the leg before being killed by deputies in a hail of gun¬re. JUNE 8, 2014 | IDEOLOGY ANTIGOVERNMENTINCIDENT TYPE GROUP | INCIDENT DYNAMIC PLANNEDWEAPON FIREARMS | OUTCOME 5 KILLED *PERPETRATOR MALE, 31; FEMALE, 22 | LAS VEGASJERAD MILLER and his wife, AMANDA, enter a pizza restaurant where two police of¬cers are eat-ing lunch. Jerad Miller fatally shoots of¬cer Igor Soldo, 31. As his partner, Alyn Beck, 41, tries to react, Miller shoots him in the throat, then both Millers shoot Beck several times. The pair leave a swastika and a Gadsden ¬‚ag on Beck's body. The yellow ¬‚ag, a symbol used by the antigovernment Patriot movement, features a c o i l e d s n a ke w i t h t h e wo r d s '' D o n ' t Tread On Me.'' On Soldo's body, they place a note: ''This is the start of the revo-lution.'' The couple leaves the restaurant a n d w a l k s t o a n e a r b y Wa l m a r t s t o r e , w h e r e A m a n d a M i l l e r
32 southern poverty law centers h o o t s a n d k i l l s Joseph Wilcox, 31, before the Millers barricade them-selves in the back of the store. Jerad is s h o t t o d e a t h b y police, and Amanda k i l l s h e r s e l f. T h e couple held strong a n t i g o v e r n m e n t views, with Jerad Miller's Facebook page contain-ing calls to impeach President Obama as well as statements about conspiracy theories popular among Patriot groups. Two months earlier, the cou-ple was at the Cliven Bundy ranch in Nevada, where militias had gathered in an armed standoff with the federal Bureau of Land Management over a grazing fee dispute. The Millers saw law enforce-ment of¬cers as ''oppressors'' and reportedly told a neighbor they planned to kill police.JUNE 15, 2014 | IDEOLOGY ANTIGOVERNMENT INCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC UNPLANNEDWEAPON FIREARM | OUTCOME NO FATALITIESPERPETRATOR MALE, 60 | NEVADA CITY, CALIF. BRENT DOUGLAS COLE, a sovereign citi-zen camping out in the woods of northern California, opens fire on two law enforcement officers who were investigating vehicles that had been parked for a long time at a wooded camp-ground near Nevada City. Cole had a history of run-ins with law enforcement, including several other weapons-related incidents, and an even lon-ger history of interest in far-right conspiracies on the Internet. At one site, Cole described himself as a ''sovereign American Citizen attempting to thwart the obvious conspiracy and subterfuges of powers inimical to the United States.'' In October 2014, a federal grand jury returns a three-count indictment against Cole, charging him with assault on a federal officer with a deadly weapon that in¬‚icted bodily injury and discharge of a ¬rearm during a crime of violence. JULY 10, 2014 | IDEOLOGY ANTIGOVERNMENTINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC PLANNEDWEAPON EXPLOSIVES | OUTCOME NO FATALITIESPERPETRATOR MALE, 47 | TREMONTON, UTAHJOHN DAVID HUGGINS is arrested after police learn he was building a gre-nade-like bomb and discussing plans to kill police of¬cers in Tremonton. In charging documents, the U.S. Attorney's of¬ce says Huggins also had instruc-tions for making bombs and had planned on blowing up bridges and other infrastructure to prevent any help from reaching his intended vic-t i m s . H u g g i n s h a s a l o n g h i s t o r y o n t h e antigovernment right, and records obtained by the SPLC show that he bought material in 1992 from the National Alliance, then the largest neo-Nazi organization in the United States. A trial is sched-uled for early 2015.AUG. 11, 2014 | IDEOLOGY ANTIGOVERNMENTINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC PLANNEDWEAPON FIREARMS, EXPLOSIVES | OUTCOME NO FATALITIESPERPETRATOR MALE, 60 | DALLAS, TEXAS DOUGLAS LEE LEGUIN, a sovereign citizen, reports a dumpster fire in a well-to- do neighborhood of Dallas and begins shooting at ¬re¬ghters who respond. Hours before the attack, police say that Leguin left his house with his AK-47, ammunition and propane canisters. Later, it was learned that he also told operators he was ''seced-ing from the nation'' because he was upset with the current state of the government, and that he was heavily armed, CBS reported. Negotiators eventu-ally persuade Leguin to surrender. According to police, Leguin had recently become depressed and spent hours watching Al-Jazeera, dreaming of starting his own country. No one was hurt in the gun¬re. Leguin is charged with seven counts of aggravated assault.
special report | the rise of lone wolf and leaderless resistance terrorism 33SEPT. 12, 2014 | IDEOLOGY ANTIGOVERNMENTINCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC PLANNEDWEAPON FIREARMS | OUTCOME 1 KILLEDPERPETRATOR MALE, 31 | BLOOMING GROVE, PA.ERIC MATTHEW FREIN, an antigovernment survivalist and crack marksman, a l l e g e d l y s h o o t s a n d k i l l s Pennsylvania State Police Cpl. Byron Dickson, 38, as he walks to his patrol car in front of a police barracks in rural northeast-ern Pennsylvania. Moments later, Frein allegedly shoots Trooper Alex T. Douglass, seriously wound-ing him. He then disappears into a wooded area and is not found for weeks despite a huge and intensive manhunt and being placed on the FBI's Top 10 Most Wanted List. On Oct. 30, however, he is captured without incident at an abandoned air-port. In November, Frein is charged with two counts of terrorism after police say he told them he carried out the attack to ''wake people up.'' A crim-inal complaint says Frein ''wanted to make a change [in government] and [believed] that voting was insufficient to do so, because there was no one worth voting for.'' Frein is charged with murder and attempted murder. NOV. 28, 2014 | IDEOLOGY HATE INCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC PLANNEDWEAPON FIREARMS, EXPLOSIVES | OUTCOME 1 KILLED * PERPETRATOR MALE, 49 | AUSTIN, TEXASLARRY STEVE MCQUILLIAMS goes on a shooting spree, ¬ring at government buildings including the Mexican con-sulate and Austin police headquarters. He ¬res more than 100 rounds, injur-ing no one, but is then killed by a near-miraculous pistol shot ¬red by an of¬cer standing 312 feet away. McQuilliams, who also brought propane cylinders with him in a van to ¬rebomb buildings at the time he was killed, was a devotee of a doctrine known as the Phineas Priesthood, an ideology that calls violence divinely justi¬ed if used against race-mix-ers, gay people, abortion proponents and others. ''He is a homegrown American extremist,'' Austin Police Chief Art Acevedo said of McQuilliams later. ''Hate in his heart was part of his problem. '... What keeps me up at night is these guys. The lone wolf.''JAN. 14, 2015 | IDEOLOGY HATE INCIDENT TYPE LONE WOLF | INCIDENT DYNAMIC PLANNEDWEAPON FIREARMS | OUTCOME NO FATALITIESPERPETRATOR MALE, 20 | GREEN TOWNSHIP, OHIO CHRISTOPHER LEE CORNELL is arrested and charged with attempting to kill a fed-eral of¬cer and with possession of a ¬rearm with the intent to commit a violent crime. Cornell, who uses the name Raheel Mahrus Ubaydah, allegedly told an FBI informant that he had been in contact with ter-rorist groups overseas and was moving forward in planning an attack. ''I just believe that we should wage jihad under our own orders and plan attacks on everything,'' Cornell reportedly said. Cornell also allegedly told the informant that he considered members of Congress to be enemies and that he intended to conduct an attack on the Capitol using bombs and firearms. Officials say plans for the attack were found on Cornell's computer. He was arrested after buying semiautomatic ri¬‚es and 600 rounds of ammunition. s
Karma's an ITCH! Daesh attacked by skin disease | Al Bawaba
Thu, 09 Apr 2015 02:26
The extremists' poor hygiene conditions have led to more than 100,000 cases. (AFP/File)
Islamic State (Daesh) militants are being attacked by a debilitating skin disease called leishmaniasis.
The disease, which is spread by sandflies, is quickly spreading thanks to pollution and poor hygiene conditions and there have been more than 100,000 cases reported, British media outlets reported earlier this week.
The extremist fighters are refusing medical treatment which has led to more outbreaks, according to the reports.
Medical centers have closed since medical staff have fled the violence making the spread of the disease more acute, according to the reports.
Dubbed ''Rose of Jericho,'' the disease is caused by protozoan parasites that belong to the genus Leishmania and is transmitted by the bite of female sand fly that bite infected rodents called rock hyraxes.
Cutaneous leishmaniasis is the most common form of leishmaniasis, while visceral leishmaniasis is a severe form in which the parasites have migrated to the vital organs. The infection appears as red sores (hence its nickname) on the skin a few weeks or months after being bitten by the sand fly that erupt weeks to months after the person affected is bitten by sand flies. The infection can also damage the liver and spleen and cause anemia. The sores can cause permanent, ugly scars if untreated.
Israel launched a program to fight the spread of the serious skin disease in 2012.
Judy Siegel-Itzkovich contributed to this report.
Common Core
Education and the death of creativity
Fri, 10 Apr 2015 16:02
(C) Wikimedia
Is it a coincidence that pretty much all children love to write stories, have fantastic imaginations, enjoy getting messy, painting, making music, inventing characters, acting out plays, drawing and making things? Why don't we carry this natural capacity throughout adulthood? Why would nature intend us to lose these gifts?Eight years ago, a man named Ken Robinson made a TED speech that revolutionized the topic of education. It caused many parents to pull their kids out of school, it was a matter of hot debate among experts, and it has been watched on the TED website over 31 million times to date (not including over 7 million more times on YouTube). Many of you may be familiar with this lecture, but for those who aren't, we highly recommend you take the next twenty minutes to sit down and listen to what this man has to say.
Robinson is an expert on creativity and education, and he strongly believes that at the moment, the two concepts don't seem to co-exist. In this speech, Robinson argues eloquently and passionately thateducationis destroying our childrens' capacity to think outside the box. Ken Robinson led the British government's 1998 advisory committee on creative and cultural education, an inquiry into the significance of creativity in the educational system and the economy, and he was knighted in 2003 for his achievements.
There were no public systems of education before the 19th Century; all of them came into being to meet the needs of the Industrial Revolution. "At school, you were probably steered away from subjects you enjoyed because 'you would never get a job doing that'," Robinson points out. "Many creative, brilliant, talented people think they're not, because everything they were good at at school wasn't valued, or was stigmatized."
"All children have tremendous talent and we squander them pretty ruthlessly," he goes on to say. "Picasso once said that all children are born artists. The problem is to remain an artist as we grow up. I believe passionately that we don't growintocreativity, we growoutof it. We areeducatedout of it."
Robinson argues that society also has a very limited definition of intelligence; a definition that looks to numeracy and literacy only, and stigmatizes children who cannot read and write fluently (but may excel at other subjects) as 'not very bright'. But is that fair, or true?
"If you visited Earth as an alien, I think you'd have to conclude that the whole purpose of public education throughout the world is to produce university professors," Robinson says. "They're the people who come out on top. Our education system is predicated on the idea of academic ability."
In short, we've been educated to become good workers, rather than creative thinkers. We teach children to be part of the system governing our society- uniformed, respectful of authority, scared of making mistakes. "If you're not prepared to be wrong, you'll never come up with anything original," Robinson points out. "Kids aren't afraid to make mistakes. If they don't know, they'll take a chance. But by the time they become adults most kids have lost that capacity. They have become frightened of being wrong. We run our companies this way. And we're now running national education systems where mistakes are the worst thing you can make."
His opinions are not an attack on teachers or schools (who I'm sure we all agree, do a fantastic job within the boundaries of the curriculum they must follow)- they refer instead to the whole system of education, throughout the world. As Robinson points out, "Every education system on earth has the same hierarchy of subjects. At the top are mathematics and languages, then the humanities, and at the bottom are the arts. Why? As children grow up, we start to educate them progressively from the waist up. Then we focus on their heads, and slightly to one side."
According to Robinson, our education system places so much emphasis on the academic subjects that natural gifts for art, music or acting are often brushed aside as we get older. Restless children may be stigmatized as hyperactive and diagnosed with ADHD. One moving example of this is a story Robinson tells about world-class dancer and choreographer Gillian Lynne (responsible for the success of Cats and Phantom of the Opera), whose mother became increasingly worried when she was a child because she found it impossible to sit still or concentrate in class. After taking her daughter to a specialist in the 1970's, her mother was told: "Gillian isn't sick. She's a dancer. Take her to a dance school." This was done, and the rest is history. But as Robinson points out, "Someone else might have put her on medication and told her to calm down."
Please watch, comment and share if you agree we need a paradigm shift in the education system!
Hundreds of Seattle high school students boycott Common Core test
Fri, 10 Apr 2015 17:52
At a news conference Tuesday, Garfield history teacher Jesse Hagopian said about half the juniors at the school '-- the site of a testing boycott in 2013 '-- have refused to take new, computerized tests, called Smarter Balanced, which are designed to measure whether students understand new learning standards known as the Common Core.
Several hundreds students in and around Seattle are refusing to take a new standardized test as part of the Common Core standards."There's actually a growing movement - in fact, probably the largest in Seattle's history," said Jesse Hagopian, a Garfield High School teacher.
Common Core standards, developed by educators across the country and bankrolled by the Gates Foundation, have been adopted in most states in the country.
In Washington, the test to ensure students have achieved these standards is called Smarter Balanced Assessment Consortium, or SBAC.
This is the first year that all students in Washington state must take the test. It is administered to students in third through eighth grade, as well as tenth grade.
The test given for tenth graders is used as part of a high school graduation requirement. A statement from Seattle Public Schools said students who refuse to take the test will receive a zero score, which could mean they will need to take remedial courses in college.
Opponents of the test said it is unfair, especially for underprivileged students. The entire test is done on a computer, which they said is challenging for students who may not have access to computers or who haven't been taught typing skills.
Hagopian and other Seattle teachers gathered at the local chapter office of the NAACP to denounce the test and urge others to do the same.
Hagopian told KIRO 7 that since the inception of No Child Left Behind, there has been a series of standardized tests.
"It hasn't worked, and we need to move to more holistic forms of thinking rather than A-B-C-D bubble thinking," he said.
Of the dozens of schools listed as having students refusing the test, three schools have more than 100 students opting out: Nathan Hale High School, Ingraham High School, and Garfield High School.
Several districts outside of Seattle also have confirmed students opting out, according to the opponents.
But Kelly James, whose children are in third and sixth grades, likes getting important information about her children's progress.
"Are they on track? Are they having growth every year? Are they meeting higher standards?" James said.
James said she also likes the Common Core way of teaching math and English skills, which are focused more on the process of arriving at an answer.
"I'd rather have my daughter going back to the book and actually drawing a conclusion from what they've read, as opposed to 'oh, I had an experience,'" she said, referring to questions that ask for evidence to support answers.
But many parents have posted homework problems online that show convoluted processes to solve math problems.
Proponents said asking students for multiple ways to arrive at one answer creates deeper understanding of what's happening with the numbers.
NA-Tech News
Row R
Microsoft seeks to recruit autistic workers - BBC News
Thu, 09 Apr 2015 03:13
The new jobs will be based at Microsoft's HQ in Redmond, USA Microsoft says it wants to hire more people with autism in full-time roles.
The tech giant is to start by offering 10 places on a pilot scheme based at its Redmond headquarters.
Senior executive Mary Ellen Smith said: "People with autism bring strengths that we need at Microsoft."
The UK's National Autistic Society welcomed the move but said that other firms should do more to tap into the skills offered by many people with autism.
Announcing the new scheme in a blog, Ms Smith said: "Each individual is different, some have an amazing ability to retain information, think at a level of detail and depth or excel in math or code."
Specialist recruitment firm, Specialisterne, will help run a new hiring scheme.
The firm, which operates in Denmark and the UK, works with several IT companies, and in other sectors, to promote the skills of people with autism for specific vacancies.
Sarah Lambert, from the National Autistic Society, said: "It's encouraging to see a global company like Microsoft recognise the untapped potential of adults with autism.
"Many may have strengths such as accuracy, a good eye for detail and reliability, which can benefit all sorts of businesses, not just the technology industry.
"However, at the moment, just 15% of adults with autism in the UK are in full-time employment.
"Simple adjustments, like making job interviews more accessible and providing support to help those in work understand the 'unwritten rules' of the workplace can unlock the potential of a whole section of society."
Federal Register | Protecting and Promoting the Open Internet
Sun, 12 Apr 2015 14:58
DATES:FOR FURTHER INFORMATION CONTACT:SUPPLEMENTARY INFORMATION:SynopsisI. IntroductionII. Executive SummaryA. Strong Rules That Protect Consumers From Past and Future Tactics That Threaten the Open Internet1. Clear, Bright-Line Rules2. No Unreasonable Interference or Unreasonable Disadvantage to Consumers or Edge Providers3. Enhanced Transparency4. Scope of the Rules5. EnforcementB. Promoting Investment With a Modern Title IIC. Sustainable Open Internet RulesD. Broad ForbearanceIII. Report and Order on Remand: Protecting and Promoting the Open InternetA. History of Openness RegulationB. The Continuing Need for Open Internet Protections1. An Open Internet Promotes Innovation, Competition, Free Expression, and Infrastructure Deployment2. Broadband Providers Have the Incentive and Ability To Limit Opennessa. Economic Incentives and Abilityb. Technical Ability3. Mobile Broadband Services4. The Commission Must Act To Preserve Internet OpennessC. Strong Rules That Protect Consumers From Practices That Can Threaten the Open Internet1. Clear, Bright Line Rulesa. Preventing Blocking of Lawful Content, Applications, Services, and Non-Harmful Devicesb. Preventing Throttling of Lawful Content, Applications, Services, and Non-Harmful Devicesc. No Paid Prioritization2. No Unreasonable Interference or Unreasonable Disadvantage Standard for Internet Conducta. Factors To Guide Application of the Ruleb. Application to Mobilec. Rejection of the ''Commercially Reasonable'' Standardd. Sponsored Data and Usage Allowances3. Transparency Requirements To Protect and Promote Internet Opennessa. The Existing Transparency Ruleb. Enhancing the Transparency Rule(i) Enhancements to Content of Required Disclosures(ii) Enhancements to the Means of Disclosure(iii) Small Businesses(iv) Safe Harbor for Form of Disclosure to Consumersc. Enforcement and Relationship to the Existing Transparency Ruled. Role of Further Advisory GuidanceD. Scope of the Rules1. Broadband Internet Access Service2. Internet Traffic Exchange3. Non-BIAS Data Services4. Reasonable Network ManagementE. Enforcement of the Open Internet Rules1. Background2. Designing an Effective Enforcement Processa. Legal Certainty(i) Advisory Opinions(ii) Enforcement Advisoriesb. Flexibility(i) Means of Enforcement and General Enforcement Mechanisms(ii) Case-by-Case Analysis(iii) Fact-Finding Processesc. Effective Access To Dispute Resolution3. Complaint Processes and Forms of Dispute Resolutiona. Complaint Filing Proceduresb. Alternative Dispute Resolutionc. Multistakeholder Processes and Technical Advisory GroupsF. Legal Authority1. Section 706 Provides Affirmative Legal Authority for Our Open Internet Rules2. Authority for the Open Internet Rules Under Title II with Forbearance3. Title III Provides Additional Authority for Mobile Broadband Services4. Applying These Legal Authorities to Our Open Internet RulesG. Other Laws and Considerations1. Emergency Communications and Safety and Security Authorities2. Transfers of Unlawful Content and Unlawful Transfers of ContentIV. Declaratory Ruling: Classification of Broadband Internet Access ServicesA. History of Broadband Internet ClassificationB. Rationale for Revisiting the Commission's Classification of Broadband Internet Access ServicesC. Classification of Broadband Internet Access Service1. Scope2. The Market Today: Current Offerings of Broadband Internet Access Servicea. Broadband Internet Access Services at Time of Classificationb. The Growth of Consumer Demand and Market Supplyc. Marketing3. Broadband Internet Access Service Is a Telecommunications Servicea. Broadband Internet Access Service Involves Telecommunicationsb. Broadband Internet Access Service Is a ''Telecommunications Service''c. Broadband Internet Access Service Is Not an ''Information Service''d. Opponents' Remaining Challenges Are Insubstantial4. Mobile Broadband Internet Access Service Is Commercial Mobile Service5. The Reclassification of Broadband Internet Access Service Will Preserve Investment IncentivesD. Judicial Estoppel Does Not Apply HereE. State and Local Regulation of Broadband ServicesV. Order: Forbearance for Broadband Internet Access ServicesA. Forbearance FrameworkB. Maintaining the Customer Safeguards Critical to Protecting and Preserving the Open Internet1. Authority To Protect Consumers and Promote Competition: Sections 201 and 2022. EnforcementC. Forbearance Analysis Specific to Broadband Internet Access Service1. Provisions That Protect Customer Privacy, Advance Access for Persons With Disabilities, and Foster Network Deploymenta. Customer Privacy (Section 222)b. Disability Access Provisions (Sections 225, 255, 251(a)(2))c. Access to Poles, Ducts, Conduit and Rights-of-Way (section 224)d. Universal Service Provisions (sections 254, 214(e))2. Broad Forbearance From 27 Title II Provisions for Broadband Internet Access Servicea. Tariffing (Sections 203, 204)b. Enforcement-Related Provisions (Sections 205, 212)c. Information Collection and Reporting Provisions (Sections 211, 213, 215, 218 Through 220)d. Discontinuance, Transfer of Control, and Network Reliability Approval (Section 214)e. Interconnection and Market-Opening Provisions (Sections 251, 252, 256)f. Subscriber Changes (Section 258)g. Other Title II Provisionsh. Truth-in-Billing Rulesi. Roaming-Related Provisions and Regulationsj. Terminal Equipment Rules3. Other Provisions and RegulationsD. Potential Objections to Our General Approach to Forbearance for Broadband Internet Access ServiceVI. Constitutional ConsiderationsA. First Amendment1. Free Speech Rights2. Compelled DisclosureB. Fifth Amendment Takings1. Per Se Takings2. Regulatory TakingsVII. SeverabilityVIII. Procedural MattersA. Regulatory Flexibility AnalysisB. Paperwork Reduction Act of 1995 AnalysisC. Congressional Review ActD. Data Quality ActE. Accessible FormatsIX. Ordering ClausesX. Final Regulatory Flexibility AnalysisA. Need for, and Objectives of, the Proposed RulesB. Summary of Significant Issues Raised by Public Comments in Response to the IRFAC. Description and Estimate of the Number of Small Entities To Which the Rules Would Apply1. Total Small Entities2. Broadband Internet Access Service Providers3. Wireline Providers4. Wireless Providers'--Fixed and Mobile5. Satellite Service Providers6. Cable Service Providers7. Electric Power Generators, Transmitters, and DistributorsD. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small EntitiesE. Steps Taken To Minimize the Significant Economic Impact on Small Entities, and Significant Alternatives ConsideredF. Report to CongressList of Subjects in 47 CFR Parts 1, 8, and 20Final RulesPART 1'--PRACTICE AND PROCEDUREPART 8'--PROTECTING AND PROMOTING THE OPEN INTERNETPART 20'--COMMERCIAL MOBILE SERVICESThis rule is effective June 12, 2015.
The modified information collection requirements in paragraphs 164, 166, 167, 169, 173, 174, 179, 180, and 181 of this document are not applicable until approved by the Office of Management and Budget (OMB). The Federal Communications Commission will publish a separate document in the Federal Register announcing such approval and the relevant effective date(s).
Kristine Fargotstein, Competition Policy Division, Wireline Competition Bureau, at (202) 418-2774 or by email at Kristine.Fargotstein@fcc.gov.
This is a summary of the Commission's Report and Order on Remand, Declaratory Ruling, and Order (''Open Internet Order'' or ''Order'') in GN Docket No. 14-28, adopted on February 26, 2015 and released on March 12, 2015. The full text of this document can be viewed at the following Internet address: https://apps.fcc.gov/edocs_public/attachmatch/FCC-15-24A1.docx. The full text of this document is also available for public inspection during regular business hours in the FCC Reference Center, 445 12th Street SW., Room CY-A257, Washington, DC 20554. To request materials in accessible formats for people with disabilities (e.g. braille, large print, electronic files, audio format, etc.) or to request reasonable accommodations (e.g. accessible format documents, sign language interpreters, CART, etc.), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice) or (202) 418-0432 (TTY).
In the Report and Order on Remand, Declaratory Ruling, and Order, we establish rules to protect and promote the open Internet, reclassify broadband Internet access service as a telecommunications service subject to Title II of the Communications Act, and forbear from the majority of Title II provisions.
1. The open Internet drives the American economy and serves, every day, as a critical tool for America's citizens to conduct commerce, communicate, educate, entertain, and engage in the world around them. The benefits of an open Internet are undisputed. But it must remain open: Open for commerce, innovation, and speech; open for consumers and for the innovation created by applications developers and content companies; and open for expansion and investment by America's broadband providers. For over a decade, the Commission has been committed to protecting and promoting an open Internet.
2. Four years ago, the Commission adopted open Internet rules to protect and promote the ''virtuous cycle'' that drives innovation and investment on the Internet'--both at the ''edges'' of the network, as well as in the network itself. In the years that those rules were in place, significant investment and groundbreaking innovation continued to define the broadband marketplace. For example, according to US Telecom, broadband providers invested $212 billion in the three years following adoption of the rules'--from 2011 to 2013'--more than in any three year period since 2002.
3. Likewise, innovation at the edge moves forward unabated. For example, 2010 was the first year that the majority of Netflix customers received their video content via online streaming rather than via DVDs in red envelopes. Today, Netflix sends the most peak downstream traffic in North America of any company. Other innovative service providers have experienced extraordinary growth'--Etsy reports that it has grown from $314 million in merchandise sales in 2010 to $1.35 billion in merchandise sales in 2013. And, just as importantly, new kinds of innovative businesses are busy being born. In the video space alone, in just the last sixth months, CBS and HBO have announced new plans for streaming their content free of cable subscriptions; DISH has launched a new package of channels that includes ESPN, and Sony is not far behind; and Discovery Communications founder John Hendricks has announced a new over-the-top service providing bandwidth-intensive programming. This year, Amazon took home two Golden Globes for its new series ''Transparent.''
4. The lesson of this period, and the overwhelming consensus on the record, is that carefully-tailored rules to protect Internet openness will allow investment and innovation to continue to flourish. Consistent with that experience and the record built in this proceeding, today we adopt carefully-tailored rules that would prevent specific practices we know are harmful to Internet openness'--blocking, throttling, and paid prioritization'--as well as a strong standard of conduct designed to prevent the deployment of new practices that would harm Internet openness. We also enhance our transparency rule to ensure that consumers are fully informed as to whether the services they purchase are delivering what they expect.
5. Carefully-tailored rules need a strong legal foundation to survive and thrive. Today, we provide that foundation by grounding our open Internet rules in multiple sources of legal authority'--including both section 706 of the Telecommunications Act and Title II of the Communications Act. Moreover, we concurrently exercise the Commission's forbearance authority to forbear from application of 27 provisions of Title II of the Communications Act, and over 700 Commission rules and regulations. This is a Title II tailored for the 21st century, and consistent with the ''light-touch'' regulatory framework that has facilitated the tremendous investment and innovation on the Internet. We expressly eschew the future use of prescriptive, industry-wide rate regulation. Under this approach, consumers can continue to enjoy unfettered access to the Internet over their fixed and mobile broadband connections, innovators can continue to enjoy the benefits of a platform that affords them unprecedented access to hundreds of millions of consumers across the country and around the world, and network operators can continue to reap the benefits of their investments.
6. Informed by the views of nearly 4 million commenters, our staff-led roundtables, numerous ex parte presentations, meetings with individual Commissioners and staff, and more, our decision today'--once and for all'--puts into place strong, sustainable rules, grounded in multiple sources of our legal authority, to ensure that Americans reap the economic, social, and civic benefits of an open Internet today and into the future.
7. The benefits of rules and policies protecting an open Internet date back over a decade and must continue. Just over a year ago, the D.C. Circuit in Verizon v. FCC struck down the Commission's 2010 conduct rules against blocking and unreasonable discrimination. But the Verizon court upheld the Commission's finding that Internet openness drives a ''virtuous cycle'' in which innovations at the edges of the network enhance consumer demand, leading to expanded investments in broadband infrastructure that, in turn, spark new innovations at the edge. The Verizon court further affirmed the Commission's conclusion that ''broadband providers represent a threat to Internet openness and could act in ways that would ultimately inhibit the speed and extent of future broadband deployment.''
8. Threats to Internet openness remain today. The record reflects that broadband providers hold all the tools necessary to deceive consumers, degrade content, or disfavor the content that they don't like. The 2010 rules helped to deter such conduct while they were in effect. But, as Verizon frankly told the court at oral argument, but for the 2010 rules, it would be exploring agreements to charge certain content providers for priority service. Indeed, the wireless industry had a well-established record of trying to keep applications within a carrier-controlled ''walled garden'' in the early days of mobile applications. That specific practice ended when Internet Protocol (IP) created the opportunity to leap the wall. But the Commission has continued to hear concerns about other broadband provider practices involving blocking or degrading third-party applications.
9. Emerging Internet trends since 2010 give us more, not less, cause for concern about such threats. First, mobile broadband networks have massively expanded since 2010. They are faster, more broadly deployed, more widely used, and more technologically advanced. At the end of 2010, there were about 70,000 devices in the U.S. that had LTE wireless connections. Today, there are more than 127 million. We welcome this tremendous investment and innovation in the mobile marketplace. With carefully-tailored rules in place, that investment can continue to flourish and consumers can continue to enjoy unfettered access to the Internet over their mobile broadband connections. Indeed, mobile broadband is becoming an increasingly important pathway to the Internet independent of any fixed broadband connections consumers may have, given that mobile broadband is not a full substitute for fixed broadband connections. And consumers must be protected, for example from mobile commercial practices masquerading as ''reasonable network management.'' Second, and critically, the growth of online streaming video services has spurred further evolution of the Internet. Currently, video is the dominant form of traffic on the Internet. These video services directly confront the video businesses of the very companies that supply them broadband access to their customers.
10. The Commission, in its May Notice of Proposed Rulemaking, asked a fundamental question: ''What is the right public policy to ensure that the Internet remains open?'' It proposed to enhance the transparency rule, and follow the Verizon court's blueprint by relying on section 706 to adopt a no-blocking rule and a requirement that broadband providers engage in ''commercially reasonable'' practices. The Commission also asked about whether it should adopt other bright-line rules or different standards using other sources of Commission authority, including Title II. And if Title II were to apply, the Commission asked about how it should exercise its authority to forbear from Title II obligations. It asked whether mobile services should also be classified under Title II.
11. Three overarching objectives have guided us in answering these questions, based on the vast record before the Commission: America needs more broadband, better broadband, and open broadband networks. These goals are mutually reinforcing, not mutually exclusive. Without an open Internet, there would be less broadband investment and deployment. And, as discussed further below, all three are furthered through the open Internet rules and balanced regulatory framework we adopt today. (Consistent with the Verizon court's analysis, this Order need not conclude that any specific market power exists in the hands of one or more broadband providers in order to create and enforce these rules. Thus, these rules do not address, and are not designed to deal with, the acquisition or maintenance of market power or its abuse, real or potential. Moreover, it is worth noting that the Commission acts in a manner that is both complementary to the work of the antitrust agencies and supported by their application of antitrust laws. See generally47 U.S.C. 152(b) (''[N]othing in this Act . . . shall be construed to modify, impair, or supersede the applicability of any of the antitrust laws.''). Nothing in this Order in any way precludes the Antitrust Division of the Department of Justice or the Commission itself from fulfilling their respective responsibilities under section 7 of the Clayton Act (15 U.S.C. 18), or the Commission's public interest standard as it assesses prospective transactions.)
12. In enacting the Administrative Procedure Act (APA), Congress instructed expert agencies conducting rulemaking proceedings to ''give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments.'' It is public comment that cements an agency's expertise. As was explained in the seminal report that led to the enactment of the APA:
13. Congress could not have imagined when it enacted the APA almost seventy years ago that the day would come when nearly 4 million Americans would exercise their right to comment on a proposed rulemaking. But that is what has happened in this proceeding and it is a good thing. The Commission has listened and it has learned. Its expertise has been strengthened. Public input has ''improve[d] the quality of agency rulemaking by ensuring that agency regulations will be `tested by exposure to diverse public comment.' '' There is general consensus in the record on the need for the Commission to provide certainty with clear, enforceable rules. There is also general consensus on the need to have such rules. Today the Commission, informed by all of those views, makes a decision grounded in the record. The Commission has considered the arguments, data, and input provided by the commenters, even if not in agreement with the particulars of this Order; that public input has created a robust record, enabling the Commission to adopt new rules that are clear and sustainable.
A. Strong Rules That Protect Consumers From Past and Future Tactics That Threaten the Open Internet1. Clear, Bright-Line Rules14. Because the record overwhelmingly supports adopting rules and demonstrates that three specific practices invariably harm the open Internet'--Blocking, Throttling, and Paid Prioritization'--this Order bans each of them, applying the same rules to both fixed and mobile broadband Internet access service.
15. No Blocking. Consumers who subscribe to a retail broadband Internet access service must get what they have paid for'--access to all (lawful) destinations on the Internet. This essential and well-accepted principle has long been a tenet of Commission policy, stretching back to its landmark decision in Carterfone, which protected a customer's right to connect a telephone to the monopoly telephone network. Thus, this Order adopts a straightforward ban:
16. No Throttling. The 2010 open Internet rule against blocking contained an ancillary prohibition against the degradation of lawful content, applications, services, and devices, on the ground that such degradation would be tantamount to blocking. This Order creates a separate rule to guard against degradation targeted at specific uses of a customer's broadband connection:
17. The ban on throttling is necessary both to fulfill the reasonable expectations of a customer who signs up for a broadband service that promises access to all of the lawful Internet, and to avoid gamesmanship designed to avoid the no-blocking rule by, for example, rendering an application effectively, but not technically, unusable. It prohibits the degrading of Internet traffic based on source, destination, or content. (To be clear, the protections of the no-blocking and no-throttling rules apply to particular classes of applications, content and services as well as particular applications, content, and services.) It also specifically prohibits conduct that singles out content competing with a broadband provider's business model.
18. No Paid Prioritization. Paid prioritization occurs when a broadband provider accepts payment (monetary or otherwise) to manage its network in a way that benefits particular content, applications, services, or devices. To protect against ''fast lanes,'' this Order adopts a rule that establishes that:
19. The record demonstrates the need for strong action. The Verizon court itself noted that broadband networks have ''powerful incentives to accept fees from edge providers, either in return for excluding their competitors or for granting them prioritized access to end users.'' Mozilla, among many such commenters, explained that ''[p]rioritization . . . inherently creates fast and slow lanes.'' Although there are arguments that some forms of paid prioritization could be beneficial, the practical difficulty is this: The threat of harm is overwhelming, case-by-case enforcement can be cumbersome for individual consumers or edge providers, and there is no practical means to measure the extent to which edge innovation and investment would be chilled. And, given the dangers, there is no room for a blanket exception for instances where consumer permission is buried in a service plan'--the threats of consumer deception and confusion are simply too great.
2. No Unreasonable Interference or Unreasonable Disadvantage to Consumers or Edge Providers20. The key insight of the virtuous cycle is that broadband providers have both the incentive and the ability to act as gatekeepers standing between edge providers and consumers. As gatekeepers, they can block access altogether; they can target competitors, including competitors to their own video services; and they can extract unfair tolls. Such conduct would, as the Commission concluded in 2010, ''reduce the rate of innovation at the edge and, in turn, the likely rate of improvements to network infrastructure.'' In other words, when a broadband provider acts as a gatekeeper, it actually chokes consumer demand for the very broadband product it can supply.
21. The bright-line bans on blocking, throttling, and paid prioritization will go a long way to preserve the virtuous cycle. But not all the way. Gatekeeper power can be exercised through a variety of technical and economic means, and without a catch-all standard, it would be that, as Benjamin Franklin said, ''a little neglect may breed great mischief.'' Thus, the Order adopts the following standard:
22. This ''no unreasonable interference/disadvantage'' standard protects free expression, thus fulfilling the congressional policy that ''the Internet offer[s] a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.'' And the standard will permit considerations of asserted benefits of innovation as well as threatened harm to end users and edge providers.
3. Enhanced Transparency23. The Commission's 2010 transparency rule, upheld by the Verizon court, remains in full effect:
24. Today's Order reaffirms the importance of ensuring transparency, so that consumers are fully informed about the Internet access they are purchasing and so that edge providers have the information they need to understand whether their services will work as advertised. To do that, the Order builds on the strong foundation established in 2010 and enhances the transparency rule for both end users and edge providers, including by adopting a requirement that broadband providers always must disclose promotional rates, all fees and/or surcharges, and all data caps or data allowances; adding packet loss as a measure of network performance that must be disclosed; and requiring specific notification to consumers that a ''network practice'' is likely to significantly affect their use of the service. Out of an abundance of caution and in response to a request by the American Cable Association, we also adopt a temporary exemption from these enhancements for small providers (defined for the purposes of the temporary exception as providers with 100,000 or fewer subscribers), and we direct our Consumer & Governmental Affairs Bureau to adopt an Order by December 15, 2015 concerning whether to make the exception permanent and, if so, the appropriate definition of ''small.'' Lastly, we create for all providers a ''safe harbor'' process for the format and nature of the required disclosure to consumers, which we believe will result in more effective presentation of consumer-focused information by broadband providers.
4. Scope of the Rules25. The open Internet rules described above apply to both fixed and mobile broadband Internet access service. Consistent with the 2010 Order, today's Order applies its rules to the consumer-facing service that broadband networks provide, which is known as ''broadband Internet access service'' (BIAS) (We note that our use of the term ''broadband'' in this Order includes but is not limited to services meeting the threshold for ''advanced telecommunications capability,'' as defined in section 706 of the Telecommunications Act of 1996, as amended. 47 U.S.C. 1302(b). Section 706 defines that term as ''high-speed, switched, broadband telecommunications capability that enables users to originate and receive high-quality voice, data, graphics, and video telecommunications using any technology.'' 47 U.S.C. 1302(d)(1). The 2015 Broadband Progress Report specifically notes that ''advanced telecommunications capability,'' while sometimes referred to as ''broadband,'' differs from the Commission's use of the term ''broadband'' in other contexts. 2015 Broadband Progress Report at n.1 (rel. Feb. 4, 2015)) and is defined to be:
26. As in 2010, BIAS does not include enterprise services, virtual private network services, hosting, or data storage services. Further, we decline to apply the open Internet rules to premises operators to the extent they may be offering broadband Internet access service as we define it today.
27. In defining this service we make clear that we are responding to the Verizon court's conclusion that broadband providers ''furnish a service to edge providers'' (and that this service was being treated as common carriage per se). As discussed further below, we make clear that broadband Internet access service encompasses this service to edge providers. Broadband providers sell retail customers the ability to go anywhere (lawful) on the Internet. Their representation that they will transport and deliver traffic to and from all or substantially all Internet endpoints includes the promise to transmit traffic to and from those Internet endpoints back to the user.
28. Interconnection. BIAS involves the exchange of traffic between a broadband Internet access provider and connecting networks. The representation to retail customers that they will be able to reach ''all or substantially all Internet endpoints'' necessarily includes the promise to make the interconnection arrangements necessary to allow that access.
29. As discussed below, we find that broadband Internet access service is a ''telecommunications service'' and subject to sections 201, 202, and 208 (along with key enforcement provisions). As a result, commercial arrangements for the exchange of traffic with a broadband Internet access provider are within the scope of Title II, and the Commission will be available to hear disputes raised under sections 201 and 202 on a case-by-case basis: An appropriate vehicle for enforcement where disputes are primarily over commercial terms and that involve some very large corporations, including companies like transit providers and Content Delivery Networks (CDNs), that act on behalf of smaller edge providers.
30. But this Order does not apply the open Internet rules to interconnection. Three factors are critical in informing this approach to interconnection. First, the nature of Internet traffic, driven by massive consumption of video, has challenged traditional arrangements'--placing more emphasis on the use of CDNs or even direct connections between content providers (like Netflix or Google) and last-mile broadband providers. Second, it is clear that consumers have been subject to degradation resulting from commercial disagreements, perhaps most notably in a series of disputes between Netflix and large last-mile broadband providers. But, third, the causes of past disruption and'--just as importantly'--the potential for future degradation through interconnection disputes'--are reflected in very different narratives in the record.
31. While we have more than a decade's worth of experience with last-mile practices, we lack a similar depth of background in the Internet traffic exchange context. Thus, we find that the best approach is to watch, learn, and act as required, but not intervene now, especially not with prescriptive rules. This Order'--for the first time'--provides authority to consider claims involving interconnection, a process that is sure to bring greater understanding to the Commission.
32. Reasonable Network Management. As with the 2010 rules, this Order contains an exception for reasonable network management, which applies to all but the paid prioritization rule (which, by definition, is not a means of managing a network):
33. Recently, significant concern has arisen when mobile providers' have attempted to justify certain practices as reasonable network management practices, such as applying speed reductions to customers using ''unlimited data plans'' in ways that effectively force them to switch to price plans with less generous data allowances. For example, in the summer of 2014, Verizon announced a change to its ''unlimited'' data plan for LTE customers, which would have limited the speeds of LTE customers using grandfathered ''unlimited'' plans once they reached a certain level of usage each month. Verizon briefly described this change as within the scope of ''reasonable network management,'' before changing course and withdrawing the change.
34. With mobile broadband service now subject to the same rules as fixed broadband service, the Order expressly recognizes that evaluation of network management practices will take into account the additional challenges involved in the management of mobile networks, including the dynamic conditions under which they operate. It also recognizes the specific network management needs of other technologies, such as unlicensed Wi-Fi networks.
35. Non-Broadband Internet Access Service Data Services. The 2010 rules included an exception for ''specialized services.'' This Order likewise recognizes that some data services'--like facilities-based VoIP offerings, heart monitors, or energy consumption sensors'--may be offered by a broadband provider but do not provide access to the Internet generally. The term ''specialized services'' can be confusing because the critical point is not whether the services are ''specialized;'' it is that they are not broadband Internet access service. IP-services that do not travel over broadband Internet access service, like the facilities-based VoIP services used by many cable customers, are not within the scope of the open Internet rules, which protect access or use of broadband Internet access service. Nonetheless, these other non-broadband Internet access service data services could be provided in a manner that undermines the purpose of the open Internet rules and that will not be permitted. The Commission expressly reserves the authority to take action if a service is, in fact, providing the functional equivalent of broadband Internet access service or is being used to evade the open Internet rules. The Commission will vigilantly watch for such abuse, and its actions will be aided by the existing transparency requirement that non-broadband Internet access service data services be disclosed.
5. Enforcement36. The Commission may enforce the open Internet rules through investigation and the processing of complaints (both formal and informal). In addition, the Commission may provide guidance through the use of enforcement advisories and advisory opinions, and it will appoint an ombudsperson. In order to provide the Commission with additional understanding, particularly of technical issues, the Order delegates to the Enforcement Bureau the authority to request a written opinion from an outside technical organization or otherwise to obtain objective advice from industry standard-setting bodies or similar organizations.
B. Promoting Investment With a Modern Title II37. Today, our forbearance approach results in over 700 codified rules being inapplicable, a ''light-touch'' approach for the use of Title II. This includes no unbundling of last-mile facilities, no tariffing, no rate regulation, and no cost accounting rules, which results in a carefully tailored application of only those Title II provisions found to directly further the public interest in an open Internet and more, better, and open broadband. Nor will our actions result in the imposition of any new federal taxes or fees; the ability of states to impose fees on broadband is already limited by the congressional Internet tax moratorium.
38. This is Title II tailored for the 21st Century. Unlike the application of Title II to incumbent wireline companies in the 20th Century, a swath of utility-style provisions (including tariffing) will not be applied. Indeed, there will be fewer sections of Title II applied than have been applied to Commercial Mobile Radio Service (CMRS), where Congress expressly required the application of sections 201, 202, and 208, and permitted the Commission to forbear from others. In fact, Title II has never been applied in such a focused way.
39. History demonstrates that this careful approach to the use of Title II will not impede investment. First, mobile voice services have been regulated under a similar light-touch Title II approach since 1994'--and investment and usage boomed. For example, between 1993 and 2009 (while voice was the primary driver of mobile revenues), the mobile industry invested more than $271 billion in building out networks, during a time in which industry revenues increased by 1300 percent and subscribership grew over 1600 percent. Moreover, more recently, Verizon Wireless has invested tens of billions of dollars in deploying mobile wireless services since being subject to the 700 MHz C Block open access rules, which overlap in significant parts with the open Internet rules we adopt today. But that is not all. Today, key provisions of Title II apply to certain enterprise broadband services that AT&T has described as ''the epicenter of the broadband investment'' the Commission seeks to promote. Title II has been maintained by more than 1000 rural local exchange carriers that have chosen to offer their DSL and fiber broadband services as common carrier offerings. And, of course, wireline DSL was regulated as a common-carrier service until 2005'--including a period in the late '90s and the first five years of this century that saw the highest levels of wireline broadband infrastructure investment to date.
40. In any event, recent events have demonstrated that our rules will not disrupt capital markets or investment. Following recent discussions of the potential application of Title II to consumer broadband, investment analysts have issued reports concluding that Title II with appropriate forbearance is unlikely to alter broadband provider conduct or have any negative effect on their value or future profitability. Executives from large broadband providers have also repeatedly represented to investors that the prospect of regulatory action will not influence their investment strategies or long-term profitability; indeed, Sprint has gone so far to say that it ''does not believe that a light touch application of Title II, including appropriate forbearance, would harm the continued investment in, and deployment of, mobile broadband services.'' Finally, the recent AWS auction, conducted under the prospect of Title II regulation, generated bids (net of bidding credits) of more than $41 billion'--further demonstrating that robust investment is not inconsistent with a light-touch Title II regime.
C. Sustainable Open Internet Rules41. We ground our open Internet rules in multiple sources of legal authority'--including both section 706 and Title II of the Communications Act. The Verizon court upheld the Commission's use of section 706 as a substantive source of legal authority to adopt open Internet protections. But it held that, ''[g]iven the Commission's still-binding decision to classify broadband providers . . . as providers of `information services,' '' open Internet protections that regulated broadband providers as common carriers would violate the Act. Rejecting the Commission's argument that broadband providers only served retail consumers, the Verizon court went on to explain that ''broadband providers furnish a service to edge providers, thus undoubtedly functioning as edge providers' 'carriers,' '' and held that the 2010 no blocking and no unreasonable discrimination rules impermissibly ''obligated [broadband providers] to act as common carriers.''
42. The Verizon decision thus made clear that section 706 affords the Commission substantive authority, and that open Internet protections are within the scope of that authority. And this Order relies on section 706 for the open Internet rules. But, in light of Verizon, absent a classification of broadband providers as providing a ''telecommunications service,'' the Commission could only rely on section 706 to put in place open Internet protections that steered clear of regulating broadband providers as common carriers per se. Thus, in order to bring a decade of debate to a certain conclusion, we conclude that the best path is to rely on all available sources of legal authority'--while applying them with a light touch consistent with further investment and broadband deployment. Taking the Verizon decision's implicit invitation, we revisit the Commission's classification of the retail broadband Internet access service as an information service and clarify that this service encompasses the so-called ''edge service.''
43. Exercising our delegated authority to interpret ambiguous terms in the Communications Act, as confirmed by the Supreme Court in Brand X, today's Order concludes that the facts in the market today are very different from the facts that supported the Commission's 2002 decision to treat cable broadband as an information service and its subsequent application to fixed and mobile broadband services. Those prior decisions were based largely on a factual record compiled over a decade ago, during an earlier time when, for example, many consumers would use homepages supplied by their broadband provider. In fact, the Brand X Court explicitly acknowledged that the Commission had previously classified the transmission service, which broadband providers offer, as a telecommunications service and that the Commission could return to that classification if it provided an adequate justification. Moreover, a number of parties who, in this proceeding, now oppose our reclassification of broadband Internet access service, previously argued that cable broadband should be deemed a telecommunications service. As the record reflects, times and usage patterns have changed and it is clear that broadband providers are offering both consumers and edge providers straightforward transmission capabilities that the Communications Act defines as a ''telecommunications service.''
44. The Brand X decision made famous the metaphor of pizza delivery. Justice Scalia, in dissent, concluded that the Commission had exceeded its legal authority by classifying cable-modem service as an ''information service.'' To make his point, Justice Scalia described a pizzeria offering delivery services as well as selling pizzas and concluded that, similarly'--broadband providers were offering ''telecommunications services'' even if that service was not offered on a ''stand-alone basis.''
45. To take Justice Scalia's metaphor a step further, suppose that in 2014, the pizzeria owners discovered that other nearby restaurants did not deliver their food and thus concluded that the pizza-delivery drivers could generate more revenue by delivering from any neighborhood restaurant (including their own pizza some of the time). Consumers would clearly understand that they are being offered a delivery service.
46. Today, broadband providers are offering stand-alone transmission capacity and that conclusion is not changed even if, as Justice Scalia recognized, other products may be offered at the same time. The trajectory of technology in the decade since the Brand X decision has been towards greater and greater modularity. For example, consumers have considerable power to combine their mobile broadband connections with the device, operating systems, applications, Internet services, and content of their choice. Today, broadband Internet access service is fundamentally understood by customers as a transmission platform through which consumers can access third-party content, applications, and services of their choosing.
47. Based on this updated record, this Order concludes that the retail broadband Internet access service available today is best viewed as separately identifiable offers of (1) a broadband Internet access service that is a telecommunications service (including assorted functions and capabilities used for the management and control of that telecommunication service) and (2) various ''add-on'' applications, content, and services that generally are information services. This finding more than reasonably interprets the ambiguous terms in the Communications Act, best reflects the factual record in this proceeding, and will most effectively permit the implementation of sound policy consistent with statutory objectives, including the adoption of effective open Internet protections.
48. This Order also revisits the Commission's prior classification of mobile broadband Internet access service as a private mobile service, which cannot be subject to common carrier regulation, and finds that it is best viewed as a commercial mobile service or, in the alternative, the functional equivalent of commercial mobile service. Under the statutory definition, commercial mobile services must be ''interconnected with the public switched network (as such terms are defined by regulation by the Commission).'' Consistent with that delegation of authority to define these terms, and with the Commission's previous recognition that the public switched network will grow and change over time, this Order updates the definition of public switched network to reflect current technology, by including services that use public IP addresses. Under this revised definition, the Order concludes that mobile broadband Internet access service is interconnected with the public switched network. In the alternative, the Order concludes that mobile broadband Internet access service is the functional equivalent of commercial mobile service because, like commercial mobile service, it is a widely available, for profit mobile service that offers mobile subscribers the capability to send and receive communications, including voice, on their mobile device.
49. By classifying broadband Internet access service under Title II of the Act, in our view the Commission addresses any limitations that past classification decisions placed on the ability to adopt strong open Internet rules, as interpreted by the D.C. Circuit in the Verizon case.
50. Having classified broadband Internet access service as a telecommunications service, we respond to the Verizon court's holding, supporting our open Internet rules under the Commission's Title II authority and removing any common carriage limitation on the exercise of our section 706 authority. For mobile broadband services, we also ground the open Internet rules in our Title III authority to protect the public interest through the management of spectrum licensing.
D. Broad Forbearance51. In finding that broadband Internet access service is subject to Title II, we simultaneously exercise the Commission's forbearance authority to forbear from 30 statutory provisions and render over 700 codified rules inapplicable, to establish a light-touch regulatory framework tailored to preserving those provisions that advance our goals of more, better, and open broadband. We thus forbear from the vast majority of rules adopted under Title II. We do not, however, forbear from sections 201, 202, and 208 (or from related enforcement provisions), (Specifically, we do not forbear from the enforcement authorities set forth in sections 206, 207, 208, 209, 216, and 217. To preserve existing CALEA obligations that already apply to broadband Internet access service, we also decline to forbear from section 229.) which are necessary to support adoption of our open Internet rules. We also grant extensive forbearance, minimizing the burdens on broadband providers while still adequately protecting the public.
52. In addition, we do not forbear from a limited number of sections necessary to ensure consumers are protected, promote competition, and advance universal access, all of which will foster network investment, thereby helping to promote broadband deployment.
53. Section 222: Protecting Consumer Privacy. Ensuring the privacy of customer information both directly protects consumers from harm and eliminates consumer concerns about using the Internet that could deter broadband deployment. Among other things, section 222 imposes a duty on every telecommunications carrier to take reasonable precautions to protect the confidentiality of its customers' proprietary information. We take this mandate seriously. For example, the Commission recently took enforcement action under section 222 (and section 201(b)) against two telecommunications companies that stored customers' personal information, including social security numbers, on unprotected, unencrypted Internet servers publicly accessible using a basic Internet search. This unacceptably exposed these consumers to the risk of identity theft and other harms.
54. As the Commission has recognized, ''[c]onsumers' privacy needs are no less important when consumers communicate over and use broadband Internet access than when they rely on [telephone] services.'' Thus, this Order finds that consumers concerned about the privacy of their personal information will be more reluctant to use the Internet, stifling Internet service competition and growth. Application of section 222's protections will help spur consumer demand for those Internet access services, in turn ''driving demand for broadband connections, and consequently encouraging more broadband investment and deployment,'' consistent with the goals of the 1996 Act.
55. Sections 225/255/251(a)(2): Ensuring Disabilities Access. We do not forbear from those provisions of Title II that ensure access to broadband Internet access service by individuals with disabilities. All Americans, including those with disabilities, must be able to reap the benefits of an open Internet, and ensuring access for these individuals will further the virtuous cycle of consumer demand, innovation, and deployment. This Order thus concludes that application of sections 225, 255, and 251(a)(2) is necessary to protect consumers and furthers the public interest, as explained in greater detail below.
56. Section 224: Ensuring Infrastructure Access. For broadband Internet access service, we do not forbear from section 224 and the Commission's associated procedural rules (to the extent they apply to telecommunications carriers and services and are, thus, within the Commission's forbearance authority). Section 224 of the Act governs the Commission's regulation of pole attachments. In particular, section 224(f)(1) requires utilities to provide cable system operators and telecommunications carriers the right of ''nondiscriminatory access to any pole, duct, conduit, or right-of-way owned or controlled'' by a utility. Access to poles and other infrastructure is crucial to the efficient deployment of communications networks including, and perhaps especially, new entrants.
57. Section 254: Promoting Universal Broadband. Section 254 promotes the deployment and availability of communications networks to all Americans, including rural and low-income Americans'--furthering our goals of more and better broadband. With the exception of section 254(d), (g), and (k) as discussed below, we therefore do not find the statutory test for forbearance from section 254 (and the related provision in section 214(e)) is met. We recognize that supporting broadband-capable networks is already a key component of Commission's current universal service policies. The Order concludes, however, that directly applying section 254 provides both more legal certainty for the Commission's prior decisions to offer universal service subsidies for deployment of broadband networks and adoption of broadband services and more flexibility going forward.
58. We partially forbear from section 254(d) and associated rules insofar as they would immediately require mandatory universal service contributions associated with broadband Internet access service.
59. Below, we first adopt three bright-line rules banning blocking, throttling, and paid prioritization, and make clear the no-unreasonable interference/disadvantage standard by which the Commission will evaluate other practices, according to their facts. These rules are grounded in multiple sources of statutory authority, including section 706 and Titles II and III of the Communications Act. Second, based on a current factual record, we reclassify broadband Internet access service as a telecommunications service under Title II. And, third, guided by our goals of more, better, and open broadband, we exercise our forbearance authority to put in place a ''light touch'' Title II regulatory framework that protects consumers and innovators, without deterring investment.
III. Report and Order on Remand: Protecting and Promoting the Open Internet Back to TopA. History of Openness Regulation60. These rules are the latest in a long line of actions by the Commission to ensure that American communications networks develop in ways that foster economic competition, technological innovation, and free expression. Ever since the landmark 1968 Carterfone decision, the Commission has recognized that communications networks are most vibrant, and best able to serve the public interest, when consumers are empowered to make their own decisions about how networks are to be accessed and utilized. Openness regulation aimed at safeguarding consumer choice has therefore been a hallmark of Commission policy for over forty years.
61. In Carterfone, the Commission confronted AT&T's practice of preventing consumers from attaching any equipment not supplied by AT&T to their home telephones, even if the attachment did not put the underlying network at risk. Finding AT&T's ''foreign attachment'' provisions unreasonable and unlawful, the Commission ruled that AT&T customers had the right to connect useful devices of their choosing to their home telephones, provided these devices did not adversely affect the telephone network.
62. Carterfone and subsequent regulatory actions by the Commission severed the market for customer premises equipment (CPE) from that for telephone service. In doing so, the Commission allowed new participants and new ideas into the market, setting the stage for a wave of innovation that produced technologies such as the answering machine, fax machine, and modem'--thereby removing a barrier to the development of the packet switched network that would eventually become the Internet.
63. Commitment to robust competition and open networks defined Commission policy at the outset of the digital revolution as well. In a series of influential decisions, known collectively as the Computer Inquiries, the Commission established a flexible regulatory framework to support development of the nascent information economy. The Computer Inquiries decisions separated the market for information services from the underlying network infrastructure, and imposed firm non-discrimination rules for network access. This system prevented network owners from engaging in anti-competitive behavior and spurred the development and adoption of new technologies.
64. The principles of open access, competition, and consumer choice embodied in Carterfone and the Computer Inquires have continued to guide Commission policy in the Internet era. As former Chairman Michael Powell noted in 2004, ''ensuring that consumers can obtain and use the content, applications and devices they want . . . is critical to unlocking the vast potential of the broadband Internet.'' In recognition of this fact, in 2005, the Commission unanimously approved the Internet Policy Statement, which laid out four guiding principles designed to encourage broadband deployment and ''preserve and promote the open and interconnected nature of the Internet.'' These principles sought to ensure that consumers had the right to access and use the lawful content, applications, and devices of their choice online, and to do so in an Internet ecosystem defined by competitive markets.
65. From 2005 to 2011, the principles embodied in the Internet Policy Statement were incorporated as conditions by the Commission into several merger orders and a key 700 MHz license, including the SBC/AT&T, Verizon/MCI, and Comcast/NBCU mergers and the Upper 700 MHz C block open platform requirements. Commission approval of these transactions was expressly conditioned on compliance with the Internet Policy Statement. During this time, open Internet principles were also applied to particular enforcement proceedings aimed at addressing anti-competitive behavior by service providers.
66. In June 2010, following a D.C. Circuit decision invalidating the Commission's exercise of ancillary authority to provide consumers basic protections in using broadband Internet services, the Commission initiated a Notice of Inquiry to ''seek comment on our legal framework for broadband Internet service.'' The Notice of Inquiry recognized that ''the current legal classification of broadband Internet service is based on a record that was gathered a decade ago.'' It sought comment on three separate alternative legal frameworks for classifying and regulating broadband Internet service: (1) As an information service, (2) as a telecommunications service ''to which all the requirements of Title II of the Communications Act would apply,'' and (3) solely as to the ''Internet connectivity service,'' as a telecommunications service with forbearance from most Title II obligations. The Notice of Inquiry sought comment on both wired and wireless broadband Internet services, ''as well as on other factual and legal issues specific to . . . wireless services that bear on their appropriate classification.''
67. In December 2010, the Commission adopted the Open Internet Order (76 FR 59192-01, Sept. 23, 2011), a codification of the policy principles contained in the Internet Policy Statement. The Open Internet Order was based on broadly accepted Internet norms and the Commission's long regulatory experience in preserving open and dynamic communications networks. The Order adopted three fundamental rules governing Internet service providers: (1) No blocking; (2) no unreasonable discrimination; and (3) transparency. The no-blocking rule and no-unreasonable discrimination rules prevented broadband service providers from deliberately interfering with consumers' access to lawful content, applications, and services, while the transparency rule promoted informed consumer choice by requiring disclosure by service providers of critical information relating to network management practices, performance, and terms of service.
68. The antidiscrimination rule contained in the Open Internet Order operated on a case-by-case basis, with the Commission evaluating the conduct of fixed broadband service providers based on a number of factors, including conformity with industry best practices, harm to competing services or end users, and impairment of free expression. This no unreasonable discrimination framework applied to commercial agreements between fixed broadband service providers and third parties to prioritize transmission of certain traffic to their subscribers. The Open Internet Order also specifically addressed paid prioritization arrangements. It did not entirely rule out the possibility of such agreements, but made clear that such ''pay for priority'' deals and the associated ''paid prioritization'' network practices were likely to be problematic in a number of respects. Paid prioritization ''represented a significant departure from historical and current practice'' that threatened ''great harm to innovation'' online, particularly in connection with the market for new services by edge providers. Paid priority agreements were also viewed as a threat to non-commercial end users, ''including individual bloggers, libraries, schools, advocacy organizations, and other speakers'' who would be less able to pay for priority service. Finally, paid prioritization was seen giving fixed broadband providers ''an incentive to limit the quality of service provided to non-prioritized traffic.'' As a result of these concerns, the Commission explicitly stated in the Open Internet Order that it was ''unlikely that pay for priority would satisfy the `no unreasonable discrimination' standard.''
69. In order to maintain flexibility, the Commission tailored the rules contained in the Open Internet Order to fit the technical and economic realities of the broadband ecosystem. To this end, the restrictions on blocking and discrimination were made subject to an exception for ''reasonable network management,'' allowing service providers the freedom to address legitimate needs such as avoiding network congestion and combating harmful or illegal content. Additionally, in order to account for then-perceived differences between the fixed and mobile broadband markets, the Open Internet Order exempted mobile service providers from the anti-discrimination rule, and only barred mobile providers from blocking ''consumers from accessing lawful Web sites'' or ''applications that compete with the provider's voice or video telephony services.'' Lastly, the Open Internet Order made clear that the rules did not prohibit broadband providers from offering specialized services such as VoIP; instead, the Commission announced that it would continue to monitor such arrangements to ensure that they did not pose a threat to Internet openness.
70. Verizon subsequently challenged the Open Internet Order in the U.S. Court of Appeals for the D.C. Circuit, arguing, among other things, that the Open Internet Order exceeded the Commission's regulatory authority and violated the Act. In January 2014, the D.C. Circuit upheld the Commission's determination that section 706 of the Telecommunications Act of 1996 granted the Commission authority to regulate broadband Internet service providers, and that the Commission had demonstrated a sound policy justification for the Open Internet Order. Specifically, the court sustained the Commission's findings that ''absent rules such as those set forth in the Open Internet Order, broadband providers represent a threat to Internet openness and could act in ways that would ultimately inhibit the speed and extent of future broadband deployment.''
71. Despite upholding the Commission's authority and the basic rationale supporting the Open Internet Order, the court struck down the no-blocking and antidiscrimination rules as at odds with section 3(51) of the Communications Act, holding that it prohibits the Commission from exercising its section 706 authority to impose common carrier regulation on a service not classified as a ''telecommunications service,'' and section 332(c)(2), which prohibits common carrier treatment of ''private mobile services.'' The D.C. Circuit vacated the no-blocking and antidiscrimination rules because it found that they impermissibly regulated fixed broadband providers as common carriers, which conflicted with the Commission's prior classification of fixed broadband Internet access service as an ''information service'' rather than a telecommunications service. Likewise, the court found that the no-blocking rule as applied to mobile broadband conflicted with the Commission's earlier classification of mobile broadband service as a private mobile service rather than a ''commercial mobile service.'' The Verizon court held that the ''no unreasonable discrimination'' standard adopted in the Open Internet Order was insufficiently distinguishable from the ''nondiscrimination'' standard applicable to common carriers. Central to the court's rationale was its finding that, as formulated in the Open Internet Order, both rules improperly limited fixed broadband Internet access providers' ability to engage in ''individualized bargaining.''
72. Following the D.C. Circuit's ruling, on May 15, 2014 the Commission issued a Notice of Proposed Rulemaking (2014 Open Internet NPRM) to respond to the lack of conduct-based rules to protect and promote an open Internet following the D.C. Circuit's opinion in Verizon v. FCC. The Commission began the NPRM with a fundamental question: ''What is the right public policy to ensure that the Internet remains open?'' While the NPRM put forth various proposals, it sought broad comment on alternative paths to the right public policy solution'--including areas such as the proper scope of the rules; the best ways to define, prevent, and treat violations of practices that may threaten an open Internet (including paid prioritization); enhancements to the transparency rule; and the appropriate source of legal authority to support new open Internet rules.
73. The Commission took many steps to facilitate public engagement in response to the 2014 Open Internet NPRM'--including the establishment of a dedicated email address to receive comments, a mechanism for submitting large numbers of comments in bulk via a Comma Separated Values (CSV) file, and the release of the entire record of comments and reply comments as Open Data in a machine-readable format, so that researchers, journalists, and other parties could analyze and create visualizations of the record. In addition, Commission staff hosted a series of roundtables covering a variety of topics related to the open Internet proceeding, including events focused on different policy approaches to protecting the open Internet, mobile broadband, enforcement issues, technology, broadband economics, and the legal issues surrounding the Commission's proposals.
74. The public seized on these opportunities to comment, submitting an unprecedented 3.7 million comments by the close of the reply comment period on September 15, 2014, with more submissions arriving after that date. This record-setting level of public engagement reflects the vital nature of Internet openness and the importance of our getting the answer right in this proceeding. Quantitative analysis of the comment pool reveals a number of key insights. For example, by some estimates, nearly half of all comments received by the Commission were unique. While there has been some public dispute as to the percentage of comments taking one position or another, it is clear that the majority of comments support Commission action to protect the open Internet. Comments regarding the continuing need for open Internet rules, their legal basis, and their substance formed the core of the overall body of comments. In particular, support for the reclassification of broadband Internet access under Title II, opposition to fast lanes and paid prioritization, and unease regarding the market power of broadband Internet access service providers were themes frequently addressed by commenters. In offering this summary, we do not mean to overlook the diversity of views reflected in the impressively large record in this proceeding. Most of all, we are grateful to the public for using the power of the open Internet to guide us in determining how best to protect it.
B. The Continuing Need for Open Internet Protections75. In its remand of the Commission's Open Internet Order, the D.C. Circuit affirmed the underlying basis for the Commission's open Internet rules, holding that ''the Commission [had] more than adequately supported and explained its conclusion that edge provider innovation leads to the expansion and improvement of broadband infrastructure.'' The court also found ''reasonable and grounded in substantial evidence'' the Commission's finding that Internet openness fosters the edge provider innovation that drives the virtuous cycle. The record on remand continues to convince us that broadband providers'--including mobile broadband providers'--have the incentives and ability to engage in practices that pose a threat to Internet openness, and as such, rules to protect the open nature of the Internet remain necessary. Today we take steps to ensure that the substantial benefits of Internet openness continue to be realized.
1. An Open Internet Promotes Innovation, Competition, Free Expression, and Infrastructure Deployment76. In the 2014 Open Internet NPRM, we sought comment on and expressed our continued commitment to an important principle underlying the Commission's prior policies'--that the Internet's openness promotes innovation, investment, competition, free expression, and other national broadband goals. The record before us convinces us that these findings, made by the Commission in 2010 and upheld by the D.C. Circuit, remain valid. If anything, the remarkable increases in investment and innovation seen in recent years'--while the rules were in place'--bear out the Commission's view. For example, in addition to broadband infrastructure investment, there has been substantial growth in the digital app economy, video over broadband, and VoIP, as well as a rise in mobile e-commerce. Overall Internet adoption has also increased since 2010. Both within the network and at its edges, investment and innovation have flourished while the open Internet rules were in force.
77. The record before us also overwhelmingly supports the proposition that the Internet's openness is critical to its ability to serve as a platform for speech and civic engagement, and that it can help close the digital divide by facilitating the development of diverse content, applications, and services. The record also supports the proposition that the Internet's openness continues to enable a ''virtuous [cycle] of innovation in which new uses of the network'--including new content, applications, services, and devices'--lead to increased end-user demand for broadband, which drives network improvements, which in turn lead to further innovative network uses.'' End users experienced the benefits of Internet openness that stemmed from the Commission's 2010 open Internet rules'--increased consumer choice, freedom of expression, and innovation.
2. Broadband Providers Have the Incentive and Ability To Limit Openness78. Broadband providers function as gatekeepers for both their end user customers who access the Internet, and for various transit providers, CDNs, and edge providers attempting to reach the broadband provider's end-user subscribers. As discussed in more detail below, broadband providers (including mobile broadband providers) have the economic incentives and technical ability to engage in practices that pose a threat to Internet openness by harming other network providers, edge providers, and end users.
a. Economic Incentives and Ability79. In the 2014 Open Internet NPRM, we sought to update the record with information about new and continuing incentives for broadband providers to limit Internet openness. As explained in detail in the Open Internet Order, broadband providers not only have the incentive and ability to limit openness, but they had done so in the past. (As the Commission explained in the Open Internet Order, examples such as the Madison River case, the Comcast-Bit Torrent case, and various mobile wireless Internet providers restricting customers' use of competitive payment applications, competitive voice applications, and remote video applications, indicate that broadband providers have the technical ability to act on incentives to harm the open Internet. The D.C. Circuit also found that these examples buttressed the Commission's conclusion that broadband providers' incentives and ability to restrict Internet traffic could interfere with the Internet's openness.) The D.C. Circuit found that the Commission ''adequately supported and explained'' that, absent open Internet rules, ''broadband providers represent a threat to Internet openness and could act in ways that would ultimately inhibit the speed and extent of future broadband deployment.'' The record generated in this proceeding convinces us that the Commission's conclusion in the Open Internet Order'--that providers of broadband have a variety of strong incentives to limit Internet openness'--remains valid today.
80. Broadband providers' networks serve as platforms for Internet ecosystem participants to communicate, enabling broadband providers to impose barriers to end-user access to the Internet on one hand, and to edge provider access to broadband subscribers on the other. This applies to both fixed and mobile broadband providers. Although there is some disagreement among commenters, the record provides substantial evidence that broadband providers have significant bargaining power in negotiations with edge providers and intermediaries that depend on access to their networks because of their ability to control the flow of traffic into and on their networks. Another way to describe this significant bargaining power is in terms of a broadband provider's position as gatekeeper'--that is, regardless of the competition in the local market for broadband Internet access, once a consumer chooses a broadband provider, that provider has a monopoly on access to the subscriber. Many parties demonstrated that both mobile and fixed broadband providers are in a position to function as a gatekeeper with respect to edge providers. Once the broadband provider is the sole provider of access to an end user, this can influence that network's interactions with edge providers, end users, and others. As the Commission and the court have recognized, broadband providers are in a position to act as a ''gatekeeper'' between end users' access to edge providers' applications, services, and devices and reciprocally for edge providers' access to end users. Broadband providers can exploit this role by acting in ways that may harm the open Internet, such as preferring their own or affiliated content, demanding fees from edge providers, or placing technical barriers to reaching end users. Without multiple, substitutable paths to the consumer, and the ability to select the most cost-effective route, edge providers will be subject to the broadband provider's gatekeeper position. The D.C. Circuit noted that the Commission ''convincingly detailed'' broadband providers' market position, which gives them ''the economic power to restrict edge-provider traffic and charge for the services they furnish edge providers,'' and further stated that the Commission reasonably explained that ''this ability to act as a `gatekeeper' distinguishes broadband providers from other participants in the Internet marketplace who have no similar `control [over] access to the Internet for their subscribers and for anyone wishing to reach those subscribers.''' (We find, for example, that even though edge providers may possess bargaining power, they do not have the same ability as broadband providers to control the flow of traffic or block access to the Internet. With respect to mobile, the presence of some additional retail competition is not enough to alter our conclusion here.) The ability of broadband providers to exploit this gatekeeper role could be mitigated if consumers multi-homed (i.e., bought broadband service from multiple networks). However, multi-homing is not widely practiced and imposes significant additional costs on consumers. The gatekeeper role could also be mitigated if a consumer could easily switch broadband providers. But, as discussed further below, the evidence suggests otherwise.
81. The broadband provider's position as gatekeeper is strengthened by the high switching costs consumers face when seeking a new service. Among the costs that consumers may experience are: High upfront device installation fees; long-term contracts and early termination fees; the activation fee when changing service providers; and compatibility costs of owned equipment not working with the new service. Bundled pricing can also play a role, as ''single-product subscribers are four times more likely to churn than triple-play subscribers.'' These costs may limit consumers' willingness and ability to switch carriers, if such a choice is indeed available. Commenters also point to an information problem, whereby consumers are unsure about the causes of problems or limitations with their services'--for example, whether a slow speed on an application is caused by the broadband provider or the edge provider'--and as such consumers may not feel that switching providers will resolve their Internet access issues. Additionally, consumers on unlimited data plans may be confused by slowed data speeds because broadband providers have not adequately communicated contractually-imposed data management practices and usage thresholds. Switching costs are also a critical factor that negatively impacts mobile broadband consumers, in particular due to the informational uncertainties mentioned below, among other reasons. Ultimately, when consumers face this kind of friction in switching to meaningful competitive alternatives, it decreases broadband provider' responsiveness to consumer demands and limits the provider's incentives to improve their networks. Additionally, 45 percent of households have only a single provider option for 25 Mbps/3 Mbps broadband service, indicating that 45 percent of households do not have any choices to switch to at this critical level of service.
82. Broadband providers may seek to gain economic advantages by favoring their own or affiliated content over other third-party sources. Technological advances have given broadband providers the ability to block content in real time, which allows them to act on their financial incentives to do so in order to cut costs or prefer certain types of content. Data caps or allowances, which limit the amount and type of content users access online, can have a role in providing consumers options and differentiating services in the marketplace, but they also can negatively influence customer behavior and the development of new applications. Similarly, broadband providers have incentives to charge for prioritized access to end users or degrade the level of service provided to non-prioritized content. When bandwidth is limited during peak hours, its scarcity can cause reliability and quality concerns, which increases broadband providers' ability to charge for prioritization. Such practices could result in so-called ''tolls'' for edge providers seeking to reach a broadband provider's subscribers, leading to reduced innovation at the edge, as well as increased rates for end users, reducing consumer demand, and further disrupting the virtuous cycle. Commenters expressed considerable concern regarding the harmful effects of paid prioritization on Internet openness. Further, as discussed above, a broadband provider's incentive to favor affiliated content or the content of unaffiliated firms that pay for it to do so, to block or degrade traffic, to charge edge providers for access to end users, and to disadvantage non-prioritized transmission all increase when end users are less able to respond by switching to rival broadband providers.
83. In addition to the harms outlined above, broadband providers' behavior has the potential to cause a variety of other negative externalities that hurt the open nature of the Internet. Broadband providers have incentives to engage in practices that will provide them short term gains but will not adequately take into account the effects on the virtuous cycle. In the Open Internet Order, the Commission found that the unaccounted-for harms to innovation are negative externalities, and are likely to be particularly large because of the rapid pace of Internet innovation, and wide-ranging because of the role of the Internet as a general purpose technology. Further, the Commission noted that a broadband provider may hesitate to impose costs on its own subscribers, but it will typically not take into account the effect that reduced edge provider investment and innovation has on the attractiveness of the Internet to end users that rely on other broadband providers'--and will therefore ignore a significant fraction of the cost of forgone innovation. The record supports our view that these negative externality problems have not disappeared, and in some cases, may be more prevalent. In order to mitigate these negative results, the Commission needs to act to promote Internet openness.
84. A final point on this question of economic incentives and ability is worth noting. Broadband providers have the ability to act as gatekeepers even in the absence of ''the sort of market concentration that would enable them to impose substantial price increases on end users.'' We therefore need not consider whether market concentration gives broadband providers the ability to raise prices. The Commission came to this conclusion in the Open Internet Order, and we conclude the same here. As the Commission noted in the Open Internet Order, threats to Internet-enabled innovation, growth, and competition do not depend on broadband providers having market power with respect to their end users. In Verizon, the court agreed, explaining that ''broadband providers' ability to impose restrictions on edge providers simply depends on end users not being fully responsive to the imposition of such restrictions.'' (We note further that, of course, our reclassification of broadband Internet access service as a ''telecommunications service'' subject to Title II below likewise does not rely on such a test or any measure of market power. Indeed, our reclassification decision is based on whether BIAS meets the statutory definition of a ''telecommunications service,'' and not any additional economic circumstances.) As we have concluded in this section, this remains true today. (We note, however, that in areas where there are limited competitive alternatives, this may exacerbate other problems such as the ability to switch from one provider to another.)
b. Technical Ability85. As the Commission explained in the Open Internet Order, past instances of abuse indicate that broadband providers have the technical ability to act on incentives to harm the open Internet. Broadband providers have a variety of tools at their disposal that can be used to monitor and regulate the flow of traffic over their networks'--giving them the ability to discriminate should they choose to do so. Techniques used by broadband providers to identify and select traffic may include approaches based on packet payloads (using deep packet inspection), network or transport layer headers (e.g., port numbers or priority markings), or heuristics (e.g., the size, sequencing, and/or timing of packets). Using these techniques, broadband providers may apply network practices to traffic that has a particular source or destination, that is generated by a particular application or by an application that belongs to a particular class of applications, that uses a particular application- or transport-layer protocol, or that is classified for special treatment by the user, application, or application provider. Application-specific network practices depend on the broadband provider's ability to identify the traffic associated with particular uses of the network. Some of these application-specific practices may be reasonable network management, e.g., tailored network security practices. However, some of these techniques may also be abused. Deep packet inspection, for example, may be used in a manner that may harm the open Internet, e.g., to limit access to certain Internet applications, to engage in paid prioritization, and even to block certain content. Similarly, traffic control algorithms can be abused, e.g., to give certain packets favorable placement in queues or to send packets along less congested routes in a manner contrary to end user preferences. Use of these techniques may ultimately affect the quality of service that users receive, which could effectively force edge providers to enter into paid prioritization agreements to prevent poor quality of content to end users.
3. Mobile Broadband Services86. We have discussed above the incentives and ability of broadband providers to act in ways that limit Internet openness, regardless of the specific technology platform used by the provider. A significant subject of discussion in the record, however, concerned mobile broadband providers specifically, and we therefore believe it is appropriate to address here the incentive and ability that these providers have to limit Internet openness. As the Commission noted in the Open Internet Order,''[c]onsumer choice, freedom of expression, end-user control, competition, and the freedom to innovate without permission are as important when end users are accessing the Internet via mobile broadband as via fixed.'' The Commission noted that ''there have been instances of mobile providers blocking certain third-party applications, particularly applications that compete with the provider's own offerings . . . .'' However, the Commission also noted the nascency of the mobile broadband industry, citing the recent development of ''app'' stores, and what it characterized at the time as ''new business models for mobile broadband providers, including usage-based pricing.'' Furthermore, the Commission at that time found that ''[m]obile broadband speeds, capacity, and penetration [were] typically much lower than for fixed broadband'' and noted that carriers had only begun to offer 4G service.
87. Citing these factors, as well as greater consumer choice, ''meaningful recent moves toward openness in and on mobile broadband networks,'' and the operational constraints faced by mobile broadband providers, the Commission applied its open Internet rules to mobile broadband, but distinguished between fixed and mobile broadband in some regards: While it applied the same transparency rule to both fixed and mobile network providers, it adopted a different no-blocking standard for mobile broadband Internet access service, and excluded mobile broadband from the unreasonable discrimination rule. In the 2014 Open Internet NPRM, the Commission tentatively concluded that it should maintain the same approach going forward, but recognized that there have been significant changes since 2010 in the mobile marketplace. The Commission sought comment on whether those changes should lead it to revisit the treatment of mobile broadband services.
88. Today, we find that changes in the mobile broadband marketplace warrant a revised approach. We find that the mobile broadband marketplace has evolved, and continues to evolve, but is no longer in a nascent stage. As discussed below, mobile broadband networks are faster, more broadly deployed, more widely used, and more technologically advanced than they were in 2010. We conclude that it would benefit the millions of consumers who access the Internet on mobile devices to apply the same set of Internet openness protections to both fixed and mobile networks.
89. Network connection speed and data consumption have exploded. For 2010, Cisco reported an average mobile network connection speed of 709 kbps. Since that time there has been massive expansion of mobile broadband networks, providing vastly increased download speeds. For 2013, Cisco reported an average mobile connection speed of 2,058 kbps. This increase in speed is partially due to the deployment of faster network technologies. Currently, mobile broadband networks provide coverage and services using a variety of 3G and 4G technologies, including, most importantly, LTE. As a consequence of the growing deployment of next generation networks, there has been an increase of more than 200,000 percent in the number of LTE subscribers, from approximately 70,000 in 2010 to over 140 million in 2014. Concurrent with these substantial changes in mobile broadband deployment and download speeds, mobile data traffic has exploded, increasing from 388 billion MB in 2010 to 3.23 trillion MB in 2013. AT&T reports that its wireless data traffic has grown 100,000 percent between 2007 and 2014 and 20,000 percent over the past five years. T-Mobile states that ''data usage continues to expand exponentially, with year-to-year increases of roughly 120 percent.''
90. As consumers use smartphones and tablets more, they increasingly rely on mobile broadband as a pathway to the Internet. The Internet Association argues that mobile Internet access is essential, since many Americans ''are wholly reliant on mobile wireless for Internet access.'' In addition, evidence shows that consumers in certain demographic groups, including low income and rural consumers and communities of color, are more likely to rely on mobile as their only access to the Internet. Citing data from the Pew Research Center's Internet & American Life Project, OTI states that ''[t]he share of Americans relying exclusively on their smartphone[s] to access the Internet is far higher among Hispanics, Blacks, and adults aged 18-29, and households earning less than $30,000 a year.'' According to data from the National Health Interview Survey, 44 percent of households were ''wireless-only'' during January-June 2014, compared to 31.6 percent during January-June 2011. These data also show that 59.1 percent of adults living in poverty reside in wireless-only households, relative to 40.8 percent of higher income adults. Additionally, rural consumers and businesses often have access to fewer options for Internet service, meaning that these customers may have limited alternatives when faced with restrictions to Internet openness imposed by their mobile provider. Furthermore, just as consumer reliance on mobile broadband has grown, edge providers increasingly rely on mobile broadband to reach their customers. Microsoft states, for example, that, ''with `the pressure . . . only increasing to either go mobile or go home,' edge providers frequently introduce new edge services on mobile platforms first, and the success or failure of these edge providers' businesses often depends in large part on their mobile offerings.''
91. Furthermore, the technology underlying today's mobile broadband networks, as compared to those deployed in 2010, not only provides operators with a greater ability to manage their networks consistent with the rules we adopt today, but also gives those operators a greater ability to engage in conduct harmful to the virtuous cycle in the absence of open Internet rules. As discussed above, certain behaviors by broadband providers may impose negative externalities on the Internet ecosystem, resulting in less innovation from edge providers. We find that the same is true today for mobile wireless broadband providers, particularly as mobile broadband technology has become more widespread and mobile broadband services have become more integrated into the economy.
92. In view of the evidence showing the evolution of the mobile broadband marketplace, we conclude that it would best serve the public interest to revise our approach for mobile broadband services and apply the same openness requirements as those applied to providers of fixed broadband services. The Commission has long recognized that the Internet should remain open for consumers and innovators alike, regardless of the different technologies and services through which it may be accessed. Although the Commission found in 2010 that conditions at that time warranted a more limited application of open Internet rules to mobile broadband services, it nevertheless recognized the importance of freedom and openness for users of mobile broadband networks, finding that ''consumer choice, freedom of expression, end-user control, competition, and the freedom to innovate without permission are as important when end users are accessing the Internet via mobile broadband as via fixed.'' In contrast to the state of the mobile broadband marketplace when the Commission adopted the 2010 open Internet rules, the evidence in the record today shows how mobile broadband services have evolved to become essential, critical means of access to the Internet for millions of consumers every day. Because of this evolution and the widespread use of mobile broadband services, maintaining a regime under which fewer protections apply in a mobile environment risks creating a substantively different Internet experience for mobile broadband users as compared to fixed broadband users. Broadband users should be able to expect that they will be entitled to the same Internet openness protections no matter what technology they use to access the Internet. We agree with arguments made by a large number of commenters that applying a consistent set of requirements will help ensure that all consumers can benefit from full access to an open and robust Internet. We note that evidence in the record indicates that mobile broadband providers themselves have recognized the importance of open Internet practices for mobile broadband consumers.
93. Despite their support of open Internet principles, several of the nationwide mobile providers oppose broader openness requirements for mobile broadband, arguing that additional rules are unnecessary in the mobile broadband market. T-Mobile, for example, argues that ''robust retail competition in the mobile broadband market already constrains mobile provider behavior.'' Verizon comments that ''consumer choice and competition also have ensured a differentiated marketplace in which providers routinely develop innovative offerings designed to outcompete competitors' offerings.'' AT&T contends that additional rules are unnecessary as mobile broadband providers are already investing in the networks, innovating, reducing prices, and thriving. CTIA contends that ''the robust competitive conditions in the mobile broadband marketplace are a defining differentiator'' and that ''any new open Internet framework should account for the competitive mobile dynamic.''
94. Based upon the significant changes in mobile broadband since 2010 discussed above, including the increased use of mobile broadband and the greater ability of mobile broadband providers to engage in conduct harmful to the virtuous cycle, we are not persuaded that maintaining fewer open Internet protections for consumers of mobile broadband services would serve the public interest. Contrary to provider arguments that applying a broader set of openness requirements will stifle innovation and chill investment, we find that the rules we adopt today for all providers of services will promote innovation, investment, and competition. As we discuss above, an open Internet enables a virtuous cycle where new uses of the network drive consumer demand, which drives network improvements, which result in further innovative uses. We agree with commenters that ''mobile is a key component'' of the virtuous cycle. OTI comments that ''a variety of economic analyses suggest that the Internet's openness is a key driver of its value . . . . Other economic studies have found that non-neutral conditions in the broadband market might maximize profits for broadband providers but would ultimately minimize consumer welfare . . . . There is significant evidence that a vibrant and neutral online economy is critical for a healthy technology industry, which is a significant creator of jobs in the U.S.'' We find that these arguments apply to mobile broadband providers as well as to fixed, and apply even though there may be more competition among mobile broadband providers.
95. We note that the Commission's experience with applying open platform rules to Upper 700 MHz C Block licensees, including Verizon Wireless, has shown that openness principles can be applied to mobile services without inhibiting a mobile provider's ability to compete and be successful in the marketplace. We find that it is reasonable to conclude that, even with broader application of Internet openness requirements, mobile broadband providers will similarly continue to compete and develop innovative products and services. We also expect that the force of consumer demand that led mobile broadband providers to invest in their networks over the past four years will likely continue to drive substantial investments in mobile broadband networks under the open Internet regime we adopt today.
96. Although mobile providers generally argue that additional rules are not necessary to deter practices that would limit Internet openness, concerns related to the openness practices of mobile broadband providers have arisen. As we noted in the 2014 Open Internet NPRM, in 2012, the Commission reached a $1.25 million settlement with Verizon for restricting tethering apps on Verizon smartphones, based on openness requirements attached to Verizon's Upper 700 MHz C Block licenses. Also in 2012, consumers complained when they encountered problems accessing Apple's FaceTime application on AT&T's network. More recently, significant concern has arisen when mobile providers' have attempted to justify certain practices as reasonable network management practices, such as applying speed reductions to customers using ''unlimited data plans'' in ways that effectively force them to switch to price plans with less generous data allowances. As Consumers Union observes, many mobile broadband provider practices are non-transparent, because customers receive ''no warning or explanation of when their speeds will be slowed down.'' Other commenters such as OTI also cite mobile providers' blocking of the Google Wallet e-payment application. Although providers claimed that the blocking was justified based on security concerns, OTI notes that ''this carrier behavior raised anticompetitive concerns when AT&T, Verizon and T-Mobile later unveiled their own mobile payment application, a competitor to Google Wallet . . . .'' Microsoft also describes further potential for abuse based on its experience in other countries without open Internet protections, claiming, for example, that ''several broadband access providers around the world have interfered or degraded Skype traffic on their networks.'' A recent survey of European Internet users found that respondents reported experiencing problems with ''blocking of internet content.'' Mobile services notably accounted for a significant percentage of negative experiences reported in the survey. OTI argues that, even with competition, mobile providers have an interest in seeking rents from edge providers and ''in securing a competitive advantage for their own competing apps, content and services.'' We agree, and find that the rules we adopt today for mobile network providers will help guard against future incidents that have the potential to affect Internet openness and undermine a mobile broadband consumer's right to access a free and open Internet.
97. In addition, we agree with those commenters that argue that mobile broadband providers have the incentives and ability to engage in practices that would threaten the open nature of the Internet, in part due to consumer switching costs. Switching costs are a significant factor in enabling the ability of mobile broadband providers to act as gatekeepers. Microsoft states that ''for the large number of applications that are available only in the mobile context, mobile broadband access providers today can be an edge provider's only option for reaching a particular end user,'' and argues that, because of high switching costs, few mobile broadband consumers routinely switch providers. Therefore, Microsoft argues, ''even if there is more than one mobile broadband access provider in a specific market, there may not be effective competitive alternatives (for edge providers or consumers) and these mobile broadband access providers retain the ability to act in a manner that undermines the competitive neutrality of the online marketplace.''
98. The level of wireless churn, when viewed in conjunction with data on consumer satisfaction, is consistent with the existence of important switching costs for customers. Based on results from surveys, OTI and Consumers Union argue that switching costs have depressed mobile wireless churn rates, meaning that customers may remain with their service providers even when they are dissatisfied. Consumers Union cites a February 2015 Consumer Reports survey showing that ''27 percent of mobile broadband consumer[s] who are dissatisfied with their mobile broadband service provider are reluctant to switch carriers'' due to several factors. That many customers stay with their mobile wireless providers, despite expressing dissatisfaction with their current provider and despite the availability of alternate plans from other providers, suggests the presence of significant barriers to switching. Furthermore, this has been a period of market and spectrum consolidation, which has decreased the choices available to consumers in many parts of the country. For example, Vonage argues that ''recent mergers between AT&T and Leap, and T-Mobile and MetroPCS have reduced the ability of wireless end users to switch to competing providers in the event of potential discrimination against the edge services they may want to access.'' Choices may be particularly limited in rural areas, both because fewer service providers tend to operate in these regions and because consumers may encounter difficulties in porting their numbers from national to local service providers.
99. Switching costs may arise due to a number of factors that affect mobile consumers. For example, consumers may face costs due to informational uncertainty, particularly in the context of concerns over open Internet restrictions. The provision of wireless service involves the interaction between the wireless network operator, the various edge providers, the customer's handset or other equipment, and the conditions present in the specific location the customer wishes to use the service. In this environment, it can be very difficult for customers to ascertain the source of a service disruption, and hence whether switching wireless providers would solve the problem. Additionally, product differentiation can make it difficult for consumers to compare plans, which may also increase switching costs. Finally, customers may face a variety of hassle-related and financial switching costs. Disconnecting an existing service and activating a new one may involve early termination fees (ETFs), coordinating with multiple members of a family plan, billing set-up, transferring personal files, and porting phone numbers, each of which may create delays or difficulties for customers. As part of this process, some customers may need to replace their equipment, which may not be compatible with their new mobile service provider's network. OTI and Consumers Union argue that moving multiple members of a shared or family plan may be particularly expensive, since ''[n]ot only do groups face the cost of multiple ETFs, but frequently the contract termination dates become nonsynchronous due to the addition of new lines and individuals upgrading their devices at different points in time.'' Furthermore, OTI and Consumers Union argue that these costs affect an increasingly large proportion of consumers, since the penetration of shared plans has increased such that the majority of AT&T and Verizon Wireless customers now have shared plans.
100. AT&T, T-Mobile, and Verizon argue that the factors that led the Commission to adopt a more limited set of openness rules for mobile in 2010 remain valid today. They argue that mobile broadband networks should not be viewed as mature as mobile technologies continue to develop and evolve. They also contend that the extraordinary growth in use of mobile broadband services requires that providers have more flexibility to be able to handle the increased traffic and ensure quality of service for subscribers. T-Mobile, for example, asserts that ''while mobile networks are more robust and offer greater speeds and capacity than they did when the 2010 rules were enacted, they also face greater demands; their need for agile and dynamic network management tools has actually increased.''
101. We recognize that mobile service providers must take into account factors such as mobility and reliance on spectrum. As discussed more fully below in the context of each of the rules, however, we find that the requirements we adopt today are sufficiently tailored to provide carriers with the flexibility they need to accommodate these conditions. Moreover, as described further below, we conclude that retaining an exception to the no-blocking rule, the no-throttling rule, and the no-unreasonable interference/disadvantage standard we adopt today for reasonable network management will allow sufficient flexibility for mobile service providers.
4. The Commission Must Act To Preserve Internet Openness102. Given that broadband providers'--both fixed and mobile'--have both the incentives and ability to harm the open Internet, we again conclude that the relatively small incremental burdens imposed by our rules are outweighed by the benefits of preserving the open nature of the Internet, including the continued growth of the virtuous cycle of innovation, consumer demand, and investment. We note, for example, that the disclosure requirements adopted in this order are widely understood, have industry-based definitions, and are commonly used in commercial Service Level Agreements by many broadband providers. Open Internet rules benefit investors, innovators, and end users by providing more certainty to each regarding broadband providers' behavior, and helping to ensure the market is conducive to optimal use of the Internet. Open Internet rules are also critical for ensuring that people living and working in rural areas can take advantage of the substantial benefits that the open Internet has to offer. In minority communities where many individuals' only Internet connection may be through a mobile device, robust open Internet rules help make sure these communities are not negatively impacted by harmful broadband provider conduct. Such rules additionally provide essential safeguards to ensure that the Internet flourishes as a platform for education and research.
103. The Commission's historical open Internet policies and rules have blunted the incentives, discussed above, to engage in behavior harmful to the open Internet. Commenters who argue that rules are not necessary overlook the role that the Commission's rules and policies have played in fostering that result. Without rules in place to protect the open Internet, the overwhelming incentives broadband providers have to act in ways that are harmful to investment and innovation threaten both broadband networks and edge content. Paid prioritization agreements, for example, have the potential to distort the market by causing prices not to reflect efficient cost recovery and by altering consumer choices for content and edge providers. The record reflects the view that paid arrangements for priority treatment, such as broadband providers discriminating among content providers or prioritizing one provider's or its own content over others, likely damage the open Internet, harming competition and consumer choice. Additionally, blocking and throttling harm a consumer's right to access lawful content, applications, and services, and to use non-harmful devices.
C. Strong Rules That Protect Consumers From Practices That Can Threaten the Open Internet104. We are keenly aware that in the wake of the Verizon decision, there are no rules in place to prevent broadband providers from engaging in conduct harmful to Internet openness, such as blocking a consumer from accessing a requested Web site or degrading the performance of an innovative Internet application. (We acknowledge other laws address behavior similar to that which our rules are designed to prevent; however, as discussed below, we do not find existing laws sufficient to adequately protect consumers' access to the open Internet. For example, some parties have suggested that existing antitrust laws would address discriminatory conduct of an anticompetitive nature. We also note that certain ''no blocking'' obligations continue to apply to the use of Upper 700 MHz C Block licenses.) While many providers have indicated that, at this time, they do not intend to depart from the previous rules, an open Internet is too important to consumers and innovators to leave unprotected. Therefore, we today reinstate strong, enforceable open Internet rules. As in 2010, we believe that conduct-based rules targeting specific practices are necessary.
105. No-Blocking. First, we adopt a bright-line rule prohibiting broadband providers from blocking lawful content, applications, services, or non-harmful devices. This ''no-blocking'' principle has long been a cornerstone of the Commission's policies. While first applied in the Internet context as part of the Commission's Internet Policy Statement, the no-blocking concept dates back to the Commission's protection of end users' rights to attach lawful, non-harmful devices to communications networks.
106. No-Throttling. Second, we adopt a separate bright-line rule prohibiting broadband providers from impairing or degrading lawful Internet traffic on the basis of content, application, service, or use of non-harmful device. This conduct was prohibited under the commentary to the no-blocking rule adopted in the 2010 Open Internet Order. However, to emphasize the importance of this concept we delineate under a separate rule a ban on impairment or degradation, to prevent broadband providers from engaging in behavior other than blocking that negatively impacts consumers' use of content, applications, services, and devices.
107. No Paid Prioritization. Third, we respond to the deluge of public comment expressing deep concern about paid prioritization. Under the rule we adopt today, the Commission will ban all paid prioritization subject to a narrow waiver process.
108. No-Unreasonable Interference/Disadvantage Standard. In addition to these three bright-line rules, we also set forth a no-unreasonable interference/disadvantage standard, under which the Commission can prohibit practices that unreasonably interfere with the ability of consumers or edge providers to select, access, and use broadband Internet access service to reach one another, thus causing harm to the open Internet. This no-unreasonable interference/disadvantage standard will operate on a case-by-case basis and is designed to evaluate other current or future broadband Internet access provider policies or practices'--not covered by the bright-line rules'-- and prohibit those that harm the open Internet.
109. Transparency Requirements. We also adopt enhancements to the existing transparency rule to more effectively serve end-user consumers, edge providers of broadband products and services, and the Internet community. These enhanced transparency requirements are modest in nature, and we decline to adopt requirements proposed in the NPRM that raised concern for smaller broadband providers in particular, such as disclosures as to the source of congestion.
1. Clear, Bright Line Rules110. The record in this proceeding reveals that three practices in particular demonstrably harm the open Internet: Blocking, throttling, and paid prioritization. For the reasons described below, we find each of these practices is inherently unjust and unreasonable, in violation of section 201(b) of the Act, and that these practices threaten the virtuous cycle of innovation and investment that the Commission intends to protect under its obligation and authority to take steps to promote broadband deployment under section 706 of the 1996 Act. We accordingly adopt bright-line rules banning blocking, throttling, and paid prioritization by providers of both fixed and mobile broadband Internet access service.
a. Preventing Blocking of Lawful Content, Applications, Services, and Non-Harmful Devices111. We continue to find, for the same reasons the Commission found in the 2010 Open Internet Order and reiterated in the 2014 Open Internet NPRM, that ''the freedom to send and receive lawful content and to use and provide applications and services without fear of blocking is essential to the Internet's openness.'' Because of broadband providers' incentives to block competitors' content, the need to protect a consumer's right to access lawful content, applications, services, and to use non-harmful devices is as important today as it was when the Commission adopted the first no-blocking rule in 2010.
112. In the 2014 Open Internet NPRM, the Commission tentatively concluded that it should re-adopt the text of the vacated no-blocking rule. The record overwhelmingly supports the notion of a no-blocking principle and re-adopting the text of the original rule. (A broad cross-section of broadband providers, edge providers, public interest organizations, and individuals support this approach.) Further, we note that many broadband providers still voluntarily continue to abide by the 2010 no-blocking rule, even though they have not been legally required to do so by a rule of general applicability since the Verizon decision. After consideration of the record and guidance from the D.C. Circuit, we adopt the following no-blocking rule applicable to both fixed and mobile broadband providers of broadband Internet access service:
113. Similar to the 2010 no-blocking rule, the phrase ''content, applications, and services'' again refers to all traffic transmitted to or from end users of a broadband Internet access service, including traffic that may not fit clearly into any of these categories. Further, the no-blocking rule adopted today again applies to transmissions of lawful content and does not prevent or restrict a broadband provider from refusing to transmit unlawful material, such as child pornography or copyright-infringing materials. (Similar to the 2010 no-blocking rule, this obligation does not impose any independent legal obligation on broadband providers to be the arbiter of what is lawful.) Today's no-blocking rule also entitles end users to connect, access, and use any lawful device of their choice, provided that the device does not harm the network. The no-blocking rule prohibits network practices that block a specific application or service, or any particular class of applications or services, unless it is found to be reasonable network management. Finally, as with the 2010 no-blocking rule, today's no-blocking rule prohibits broadband providers from charging edge providers a fee to avoid having the edge providers' content, service, or application blocked from reaching the broadband provider's end-user customer. (We note that during oral argument in the Verizon case, Verizon told the court that ''in paragraph 64 of the Order the Agency also sets forth the no charging of edge providers rule as a corollary to the no blocking rule, and that's a large part of what is causing us our harm here.'' In response, Judge Silberman stated, ''if you were allowed to charge, which are you assuming you're allowed to charge because of the anti-common carrier point of view, if somebody refused to pay then just like in the dispute between C[B]S and Warner, Time Warner . . . you could refuse to carry.'' Verizon's counsel responded: ''[r]ight.'' Verizon Oral Arg. Tr. at 28.)
114. Rejection of the Minimum Level of Access Standard. The 2014 Open Internet NPRM proposed that the no-blocking rule would prohibit broadband providers from depriving edge providers of a minimum level of access to the broadband provider's subscribers and sought comment on how to define that minimum level of service. After consideration of the record, we reject the minimum level of access standard. Broadband providers, edge providers, public interest organizations, and other parties note the practical and technical difficulties associated with setting any such minimum level of access. For example, some parties note the uncertainty created by an indefinite standard. Other parties observe that in creating any such standard of service for no-blocking, the Commission risks jeopardizing innovation. We agree with these arguments and many others in the record expressing concern with the proposed minimum level of access standard.
115. The no-blocking rule we adopt today prohibits broadband providers from blocking access to lawful Internet content, applications, services, and non-harmful devices. We believe that this approach will allow broadband providers to honor their service commitments to their subscribers without relying upon the concept of a specified level of service to those subscribers or edge providers under the no-blocking rule. We further believe that the separate no-throttling rule discussed below provides appropriate protections against harmful conduct that degrades traffic but does not constitute outright blocking.
116. Application of the No-Blocking Rule to Mobile. In 2010, the Commission limited the no-blocking rule for mobile to lawful Web sites and applications that competed with a provider's voice or video telephony services, subject to reasonable network management. The 2014 Open Internet NPRM, citing ''the operational constraints that affect mobile broadband services, the rapidly evolving nature of the mobile broadband technologies, and the generally greater amount of consumer choice for mobile broadband services than for fixed,'' proposed to retain the 2010 no-blocking rule. The Commission sought comment on this proposal.
117. For the reasons set forth above, including consumer expectations, the Commission's experience with open Internet regulations in the 700 MHz C Block, and the advances in the mobile broadband industry since 2010, we conclude instead that the same no-blocking rule should apply to both fixed and mobile broadband Internet access services. Accordingly, as with fixed service, a consumer's mobile broadband provider cannot block a consumer from accessing lawful content, applications, services, or non-harmful devices, regardless of whether the content, applications, services, or devices (In evaluating the reasonable network management exception to the no-blocking rule, the Commission will drawing upon its experience with the no-blocking rule in the 700 MHz C Block.) compete with a provider's own offerings, subject to reasonable network management.
118. All national mobile broadband providers, among others, opposed the application of the broader no-blocking rule to mobile broadband, arguing, for example, that mobile broadband providers need the ability to block unwanted traffic and spam. They also argue that the particular challenges of managing a mobile broadband network, for example the unknown effects of apps, require additional flexibility to block traffic. As discussed below, we recognize that additional flexibility may be required in mobile network management practices, but find that the reasonable network management exception we adopt today allows sufficient flexibility: The blocking of harmful or unwanted traffic remains a legitimate network management purpose, and is permissible when pursued through reasonable network management practices.
b. Preventing Throttling of Lawful Content, Applications, Services, and Non-Harmful Devices119. In the 2014 Open Internet NPRM, the Commission proposed that degradation of lawful content or services below a specified level of service would violate a no-blocking rule. While certain broadband Internet access provider conduct may result in degradation of an end user's Internet experience that is tantamount to blocking, we believe that this conduct requires delineation in an explicit rule rather than through commentary as part of the no-blocking rule. Thus, we adopt a separate no-throttling rule applicable to both fixed and mobile providers of broadband Internet access service:
120. With the no-throttling rule, we ban conduct that is not outright blocking, but inhibits the delivery of particular content, applications, or services, or particular classes of content, applications, or services. Likewise, we prohibit conduct that impairs or degrades lawful traffic to a non-harmful device or class of devices. We interpret this prohibition to include, for example, any conduct by a broadband Internet access service provider that impairs, degrades, slows down, or renders effectively unusable particular content, services, applications, or devices, that is not reasonable network management. For purposes of this rule, the meaning of ''content, applications, and services'' has the same as the meaning given to this phrase in the no-blocking rule. Like the no-blocking rule, broadband providers may not impose a fee on edge providers to avoid having the edge providers' content, service, or application throttled. Further, transfers of unlawful content or unlawful transfers of content are not protected by the no-throttling rule. We will consider potential violations of the no-throttling rule under the enforcement provisions outlined below.
121. We find that a prohibition on throttling is as necessary as a rule prohibiting blocking. Without an equally strong no-throttling rule, parties note that the no-blocking rule will not be as effective because broadband providers might otherwise engage in conduct that harms the open Internet but falls short of outright blocking. For example, the record notes the existence of numerous practices that broadband providers can engage in to degrade an end user's experience.
122. Because our no-throttling rule addresses instances in which a broadband provider targets particular content, applications, services, or non-harmful devices, it does not address a practice of slowing down an end user's connection to the Internet based on a choice made by the end user. For instance, a broadband provider may offer a data plan in which a subscriber receives a set amount of data at one speed tier and any remaining data at a lower tier. If the Commission were concerned about the particulars of a data plan, it could review it under the no-unreasonable interference/disadvantage standard. In contrast, if a broadband provider degraded the delivery of a particular application (e.g., a disfavored VoIP service) or class of application (e.g., all VoIP applications), it would violate the bright-line no-throttling rule. We note that user-selected data plans with reduced speeds must comply with our transparency rule, such that the limitations of the plan are clearly and accurately communicated to the subscriber.
123. The no-throttling rule also addresses conduct that impairs or degrades content, applications, or services that might compete with a broadband provider's affiliated content. For example, if a broadband provider and an unaffiliated entity both offered over-the-top applications, the no-throttling rule would prohibit broadband providers from constraining bandwidth for the competing over-the-top offering to prevent it from reaching the broadband provider's end user in the same manner as the affiliated application.
124. As in the 2010 Open Internet Order, we continue to recognize that in order to optimize the end-user experience, broadband providers must be permitted to engage in reasonable network management practices. We emphasize, however, that to be eligible for consideration under the reasonable network management exception, a network management practice that would otherwise violate the no-throttling rule must be used reasonably and primarily for network management purposes, and not for business purposes. (While not within the definition of ''throttling'' for purposes of our no-throttling rule, the slowing of subscribers' content on an application agnostic basis, including as an element of subscribers' purchased service plans, will be evaluated under the transparency rule and the no-unreasonable interference/disadvantage standard.)
c. No Paid Prioritization125. In the 2014 Open Internet NPRM, the Commission sought comment on suggestions to impose a flat ban on paid prioritization services, including whether all paid prioritization practices, or some of them, could be treated as per se violations of the commercially-reasonable standard or any other standard based on any source of legal authority. For reasons explained below, we conclude that paid prioritization network practices harm consumers, competition, and innovation, as well as create disincentives to promote broadband deployment and, as such, adopt a bright-line rule against such practices. Accordingly, today we ban arrangements in which the broadband service provider accepts consideration (monetary or otherwise) from a third party to manage the network in a manner that benefits particular content, applications, services, or devices. We also ban arrangements where a provider manages its network in a manner that favors the content, applications, services or devices of an affiliated entity. (We consider arrangements of this kind to be paid prioritization, even when there is no exchange of payment or other consideration between the broadband Internet access service provider and the affiliated entity.) Any broadband provider that engages in such practices will be subject to enforcement action, including forfeitures and other penalties. (Other forms of traffic prioritization, including practices that serve a public safety purpose, may be acceptable under our rules as reasonable network management.) We adopt the following rule banning paid prioritization arrangements:
126. The paid prioritization ban we adopt today is based on the record that has developed in this proceeding. The record is rife with commenter concerns regarding preferential treatment arrangements, with many advocating a flat ban on paid prioritization. Commenters assert that permitting paid prioritization will result in the bifurcating of the Internet into a ''fast'' lane for those willing and able to pay and a ''slow'' lane for everyone else. As several commenters observe, allowing for the purchase of priority treatment can lead to degraded performance'--in the form of higher latency, increased risk of packet loss, or, in aggregate, lower bandwidth'--for traffic that is not covered by such an arrangement. Commenters further argue that paid prioritization will introduce artificial barriers to entry, distort the market, harm competition, harm consumers, discourage innovation, undermine public safety and universal service, and harm free expression. Vimeo, for instance, argues that paid prioritization ''would disadvantage user-generated video and independent filmmakers'' that lack the resources of major film studios to pay priority rates for dissemination of content. Engine Advocacy meanwhile asserts that ''[s]ome unfunded early startups may not be able to afford [to pay for priority treatment] (particularly if the product would be data-intensive) and will not start a company,'' resulting in ''reduce[d] entrepreneurship.'' Commenters assert that if paid prioritization became widespread, it would make reliance on consumers' ordinary, non-prioritized access to the Internet an increasingly unattractive and competitively nonviable option. The Commission's conclusion is supported by a well-established body of economic literature, (The access provided by the core network is an intermediate input into the myriad of final products produced by edge providers. While it is granted that for a firm selling final goods, price discrimination can be both profitable and enhance welfare, it has been argued that the reverse is also true when intermediate goods are considered.) including Commission staff working papers.
127. It is well-established that broadband providers have both the incentive and ability to engage in paid prioritization. In its Verizon opinion, the DC Circuit noted that providers ''have powerful incentives to accept fees from edge providers, either in return for excluding their competitors or for granting them prioritized access to end users.'' Indeed, at oral argument Verizon's counsel announced that ''but for [the 2010 Open Internet Order] rules we would be exploring [such] commercial arrangements.'' While we appreciate that several broadband providers have claimed that they do not engage in paid prioritization or that they have no plans to do so, (For example, we note that in Verizon's letter to Chairman Leahy, the company states ''[a]s we have said before, and affirm again here, Verizon has no plans to engage in paid prioritization of Internet traffic.'' Verizon Letter to Leahy at 1. However, in contrast to this statement, at oral argument in the Verizon case, counsel for Verizon explained that the company would pursue such arrangements if not for the 2010 Open Internet rules which prevented them.) such statements do not have the force of a legal rule that prevents them from doing so in the future. The future openness of the Internet should not turn on the decision of a particular company. We are concerned that if paid prioritization practices were to become widespread, the damage to Internet openness could be difficult to reverse. We agree that ''[u]nraveling a web of discriminatory deals after significant investments have been made, business plans have been built, and technologies have been deployed would be a complicated undertaking both logistically and politically.'' Further, documenting the harms could prove challenging, as it is impossible to identify small businesses and new applications that are stifled before they become commercially viable. Prioritizing some traffic over others based on payment or other consideration from an edge provider could fundamentally alter the Internet as a whole by creating artificial motivations and constraints on its use, damaging the web of relationships and interactions that define the value of the Internet for both end users and edge providers, and posing a risk of harm to consumers, competition, and innovation. Thus, because of the very real concerns about the chilling effects that preferential treatment arrangements could have on the virtuous cycle of innovation, consumer demand, and investment, we adopt a bright-line rule banning paid prioritization arrangements. (Some commenters argue that consumer disclosures about such practices are sufficient. However, the average consumer does not have the time or specialized knowledge to sort through the implications, and regardless, in many areas of the country, consumers simply do not have multiple, equivalent choices.)
128. In arguing against such a ban, ADTRAN asserts that it would ''cement the advantages enjoyed by the largest edge providers that presently obtain the functional equivalent of priority access by constructing their own extensive networks that interconnect directly with the ISPs.'' We reject this argument. CDT correctly observes that ''[e]stablished entities with substantial resources will always have a variety of advantages'' over less established ones, notwithstanding any rules we adopt. We do not seek to disrupt the legitimate benefits that may accrue to edge providers that have invested in enhancing the delivery of their services to end users. On the contrary, such investments may contribute to the virtuous cycle by stimulating further competition and innovation among edge providers, to the ultimate benefit of consumers. We also clarify that the ban on paid prioritization does not restrict the ability of a broadband provider and CDN to interconnect.
129. We find that a flat ban on paid prioritization has advantages over alternative approaches identified in the record. Prohibiting this practice outright will help to foster broadband network investment by setting clear boundaries of acceptable and unacceptable behavior. It will also protect consumers against a harmful practice that may be difficult to understand, even if disclosed. In addition, this approach relieves small edge providers, innovators, and consumers of the burden of detecting and challenging instances of harmful paid prioritization. Given the potential harms to the virtuous cycle, we believe it is more appropriate to impose an ex ante ban on such practices, while entertaining waiver requests under exceptional circumstances.
130. Under our longstanding waiver rule, the Commission may waive any rule ''in whole or in part, for good cause shown.'' General waiver of the Commission's rules is appropriate only if special circumstances warrant a deviation from the general rule, and such a deviation will serve the public interest. In some cases, however, the Commission adopts specific rules concerning the factors that will be used to examine a waiver or exemption request. We believe that such guidance is appropriate here to make clear the very limited circumstances in which the Commission would be willing to allow paid prioritization. Accordingly, we adopt a rule concerning waiver of the paid prioritization ban that establishes a balancing test, as follows:
131. In support of any waiver request, the applicant therefore must make two related showings. First, the applicant must demonstrate that the practice will have some significant public interest benefit, such as providing evidence that the practice furthers competition, innovation, consumer demand, or investment. Second, the applicant must demonstrate that the practice does not harm the nature of the open Internet, including, but not limited to, providing evidence that the practice:
Does not materially degrade or threaten to materially degrade the broadband Internet access service of the general public;does not hinder consumer choice;does not impair competition, innovation, consumer demand, or investment; anddoes not impede any forms of expressions, types of service, or points of view.132. An applicant seeking waiver relief under this rule faces a high bar. We anticipate granting such relief only in exceptional cases. (For instance, several commenters argue that paid prioritization arrangements could improve the provision of telemedicine services.)
2. No Unreasonable Interference or Unreasonable Disadvantage Standard for Internet Conduct133. In the 2014 Open Internet NPRM, the Commission tentatively concluded that it should adopt a rule requiring broadband providers to use ''commercially reasonable'' practices in the provision of broadband Internet access service, and sought comment on this approach. (The Commission also tentatively concluded that it should operate separately from the proposed no-blocking rule, i.e., conduct acceptable under the no-blocking rule would still be subject to independent examination under the ''commercially reasonable'' standard, and sought comment on this approach.) The Commission also sought comment on whether there were alternative legal standards that the Commission should consider, or whether it should adopt a rule that prohibits unreasonable discrimination and, if so, what legal authority and theories it should rely upon to do so. In addition, the Commission sought comment on how it can ensure that the rule it adopts sufficiently protects against harms to the open Internet, including broadband providers' incentives to disadvantage edge providers or classes of edge providers in ways that would harm Internet openness.
134. The Commission sought comment on what factors it should adopt to ensure commercially reasonable practices that will protect and promote Internet openness, and tentatively concluded that a review of the totality of the circumstances should be preserved to ensure that rules can be applied evenly and fairly in response to changing circumstances. The Commission also recognized that there have been significant changes in the mobile marketplace since 2010, and sought comment on whether and, if so, how these changes should affect the Commission's treatment of mobile services under the rules. (Specifically, the Commission sought comment on whether, under the commercially reasonable rule, mobile networks should be subject to the same totality-of-the circumstances test as fixed broadband, and whether the Commission should apply the commercially reasonable legal standard to mobile broadband.)
135. Preventing Unreasonable Interference or Unreasonable Disadvantage that Harms Consumers and Edge Providers. The three bright-line rules that we adopt today prohibit specific conduct that harms the open Internet. The open nature of the Internet has allowed new products and services to flourish and has broken down geographic barriers to communication, allowing information to flow freely. We believe the rules we adopt today will alleviate many of the concerns identified in the record regarding broadband provider practices that could upset these positive outcomes. However, while these three bright-line rules comprise a critical cornerstone in protecting and promoting the open Internet, we believe that there may exist other current or future practices that cause the type of harms our rules are intended to address. For that reason, we adopt a rule setting forth a no-unreasonable interference/disadvantage standard, under which the Commission can prohibit, on a case-by-case basis, practices that unreasonably interfere with or unreasonably disadvantage the ability of consumers to reach the Internet content, services, and applications of their choosing or of edge providers to access consumers using the Internet.
136. It is critical that access to a robust, open Internet remains a core feature of the communications landscape, but also that there remains leeway for experimentation with innovative offerings. Based on our findings that broadband providers have the incentive and ability to discriminate in their handling of network traffic in ways that can harm the virtuous cycle of innovation, increased end-user demand for broadband access, and increased investment in broadband network infrastructure and technologies, we conclude that a no-unreasonable interference/disadvantage standard to protect the open nature of the Internet is necessary. We adopt this standard to prohibit practices in the broadband Internet access provider's network that harm Internet openness, similar to the approach proposed by the Higher Education coalition and the Center for Democracy and Technology. Specifically, we require that:
137. This ''no-unreasonable interference/disadvantage'' standard will be applied to carefully balance the benefits of innovation against harm to end users and edge providers. It also protects free expression, thus fulfilling the congressional policy that the Internet ''offer[s] a forum for true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.'' As the Commission found in 2010, and the Verizon court upheld, ''[r]estricting edge providers' ability to reach end users, and limiting end users' ability to choose which edge providers to patronize, would reduce the rate of innovation at the edge and, in turn, the likely rate of improvements to network infrastructure. Similarly, restricting the ability of broadband providers to put the network to innovative uses may reduce the rate of improvements to network infrastructure.'' Under the standard that we adopt today, the Commission can protect against harm to end users' or edge providers' ability to use broadband Internet access service to reach one another. Compared to the no unreasonable discrimination standard adopted by the Commission in 2010, the standard we adopt today is specifically designed to protect against harms to the open nature of the Internet. We note that the standard we adopt today represents our interpretation of sections 201 and 202 in the broadband Internet access context and, independently, our interpretation'--upheld by the Verizon court'--that rules to protect Internet openness promote broadband deployment via the virtuous cycle under section 706 of the 1996 Act.
a. Factors To Guide Application of the Rule138. We adopt our tentative conclusion to follow a case-by-case approach, considering the totality of the circumstances, when analyzing whether conduct satisfies the no-unreasonable interference/disadvantage standard to protect the open Internet. Below we discuss a non-exhaustive list of factors we will use to assess such practices. In adopting this standard, we enable flexibility in business arrangements and ensure that innovation in broadband and edge provider business models is not unduly curtailed. We are mindful that vague or unclear regulatory requirements could stymie rather than encourage innovation, and find that this approach combined with the factors set out below will provide sufficient certainty and guidance to consumers, broadband providers, and edge providers'--particularly smaller entities that might lack experience dealing with broadband providers'--while also allowing parties flexibility in developing new services. (We also note that this Order permits parties to seek advisory opinions regarding application of the Commission's open Internet rules. We view these processes as complementary methods by which parties can seek guidance as to how the open Internet rules apply to particular conduct.) We note that in addition to the following list, there may be other considerations relevant to determining whether a particular practice violates the no-unreasonable interference/disadvantage standard. This approach of adopting a rule of general conduct, followed by guidance as to how to apply it on a case-by-case basis, is not novel. The Commission took a similar approach in 2010 when it adopted the ''no unreasonable discrimination'' rule, which was followed by a discussion of four factors (end-user control, use-agnostic discrimination, standard practices, and transparency). Indeed, for this new rule, we are providing at least as much guidance, if not more, as we did in 2010 for the application of the no unreasonable discrimination rule.
139. End-User Control. A practice that allows end-user control and is consistent with promoting consumer choice is less likely to unreasonably interfere with or cause an unreasonable disadvantage affecting the end user's ability to use the Internet as he or she sees fit. The Commission has long recognized that enabling consumer choice is the best path toward ensuring competitive markets, economic growth, and technical innovation. It is therefore critical that consumers' decisions, rather than those of service providers, remain the driving force behind the development of the Internet. To this end, practices that favor end-user control and empower meaningful consumer choice are more likely to satisfy the no-unreasonable interference/disadvantage standard than those that do not. However, as was true in 2010, we are cognizant that user control and network control are not mutually exclusive, and that many practices will fall somewhere on a spectrum from more end-user-controlled to more broadband provider-controlled. Further, there may be practices controlled entirely by broadband providers that nonetheless satisfy the no-unreasonable interference/disadvantage standard. In all events, however, we emphasize that such practices should be fully transparent to the end user and effectively reflect end users' choices.
140. Competitive Effects. As the Commission has found previously, broadband providers have incentives to interfere with and disadvantage the operation of third-party Internet-based services that compete with the providers' own services. Practices that have anti-competitive effects in the market for applications, services, content, or devices would likely unreasonably interfere with or unreasonably disadvantage edge providers' ability to reach consumers in ways that would have a dampening effect on innovation, interrupting the virtuous cycle. As such, these anticompetitive practices are likely to harm consumers' and edge providers' ability to use broadband Internet access service to reach one another. Conversely, enhanced competition leads to greater options for consumers in services, applications, content, and devices, and as such, practices that would enhance competition would weigh in favor of promoting consumers' and edge providers' ability to use broadband Internet access service to reach one another. In examining the effect on competition of a given practice, we will also review the extent of an entity's vertical integration as well as its relationships with affiliated entities.
141. Consumer Protection. The no-unreasonable interference/disadvantage standard is intended to serve as a strong consumer protection standard. It prohibits broadband providers from employing any deceptive or unfair practice that will unreasonably interfere with or disadvantage end-user consumers' ability to select, access, or use broadband services, applications, or content, so long as the services are lawful, subject to the exception for reasonable network management. For example, unfair or deceptive billing practices, as well as practices that fail to protect the confidentiality of end users' proprietary information, will be unlawful if they unreasonably interfere with or disadvantage end-user consumers' ability to select, access, or use broadband services, applications, or content, so long as the services are lawful, subject to the exception for reasonable network management. While each individual case will be evaluated on its own merits, this rule is intended to include protection against fraudulent practices such as ''cramming'' and ''slamming'' that have long been viewed as unfair and disadvantageous to consumers.
142. Effect on Innovation, Investment, or Broadband Deployment. As the Verizon court recognized, Internet openness drives a ''virtuous cycle'' in which innovations at the edges of the network enhance consumer demand, leading to expanded investments in broadband infrastructure that, in turn, spark new innovations at the edge. As such, practices that stifle innovation, investment, or broadband deployment would likely unreasonably interfere with or unreasonably disadvantage end users' or edge providers' use of the Internet under the legal standard we set forth today.
143. Free Expression. As Congress has recognized, the Internet ''offer[s] a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.'' Practices that threaten the use of the Internet as a platform for free expression would likely unreasonably interfere with or unreasonably disadvantage consumers' and edge providers' ability to use BIAS to communicate with each other, thereby causing harm to that ability. Further, such practices would dampen consumer demand for broadband services, disrupting the virtuous cycle, and harming end user and edge provider use of the Internet under the legal standard we set forth today. (We also note that the no-unreasonable interference/disadvantage standard does not unconstitutionally burden any of the First Amendment rights held by broadband providers because broadband providers are conduits, not speakers, with respect to broadband Internet access services.)
144. Application Agnostic. Application-agnostic (sometimes referred to as use-agnostic) practices likely do not cause an unreasonable interference or an unreasonable disadvantage to end users' or edge providers' ability to use BIAS to communicate with each other. (A network practice is application-agnostic if it does not differentiate in treatment of traffic, or if it differentiates in treatment of traffic without reference to the content, application, or device. A practice is application-specific if it is not application-agnostic. Application-specific network practices include, for example, those applied to traffic that has a particular source or destination, that is generated by a particular application or by an application that belongs to a particular class of applications, that uses a particular application- or transport-layer protocol, or that has particular characteristics (e.g., the size, sequencing, and/or timing of packets). We note, however, that there do exist circumstances where application-agnostic practices raise competitive concerns, and as such may violate our standard to protect the open Internet.) Application-agnostic practices do not interfere with end users' choices about which content, applications, services, or devices to use, nor do they distort competition and unreasonably disadvantage certain edge providers. As such, they likely would not cause harm by unreasonably interfering with or disadvantaging end users or edge providers' ability to communicate using BIAS.
145. Standard Practices. In evaluating whether a practice violates our no-unreasonable interference/disadvantage standard to protect Internet openness, we will consider whether a practice conforms to best practices and technical standards adopted by open, broadly representative, and independent Internet engineering, governance initiatives, or standards-setting organization. Consideration of input from technical advisory groups accounts for the important role these organizations have to play in developing communications policy. We make clear, however, that we are not delegating authority to interpret or implement our rules to outside bodies.
b. Application to Mobile146. As discussed earlier, because of changes that have occurred in the mobile marketplace since 2010, including the widespread deployment of 4G LTE networks and the significant increase in use of mobile broadband Internet access services, we find that it is appropriate to revise our approach for mobile broadband and apply the same openness protections to both fixed and mobile broadband Internet access services, including prohibiting mobile broadband providers from engaging in practices that harm Internet openness. We find that applying the no-unreasonable interference/disadvantage standard to mobile broadband services will help ensure that consumers using mobile broadband services are protected against provider practices that would unreasonably restrict their ability to access a free and open Internet.
147. AT&T, T-Mobile, and Verizon oppose application of a ''commercially reasonable practices'' rule to mobile broadband networks. They argue that competition in the mobile broadband market already ensures that service providers have no incentive to discriminate. CTIA argues that applying a commercial reasonableness standard would deter innovation and limit the ability of providers to differentiate themselves in the marketplace because providers would have to factor in the risk of complaints and investigations. Nokia argues that the Commission should ensure that its rules allow a range of service options. Free State recommends that if the Commission adopts a legally enforceable standard, it should establish a presumption that mobile network management practices benefit consumer welfare and that presumption could only be overcome ''by actual evidence of anticompetitive conduct.''
148. We find that even if the mobile market were sufficiently competitive, competition alone is not sufficient to deter mobile providers from taking actions that would limit Internet openness. As noted above, there have been incidents where mobile providers have acted in a manner inconsistent with open Internet principles and we find that there is a risk that providers will continue to have the incentive to take actions that would favor their own content or services. We also agree with commenters that mobile providers' need for flexibility to manage their network can be accommodated through the reasonable network management exception.
149. In addition, we find that applying the no-unreasonable interference/disadvantage standard to mobile broadband will not affect providers' ability to differentiate themselves in the marketplace. We have crafted the standard we adopt today to prohibit these practices that harm Internet openness while still permitting innovation and experimentation. Nothing in the standard restricts carriers from developing new services or implementing new business models.
c. Rejection of the ''Commercially Reasonable'' Standard150. Based on the record before us, we are persuaded that adopting a legal standard prohibiting commercially unreasonable practices is not the most effective or appropriate approach for protecting and promoting an open Internet. Internet openness involves many relationships that are not business-to-business and serves many purposes that are noncommercial. (In the data roaming context, two commercial entities deal directly with one another to negotiate a fee-for-service agreement, and there is a direct business relationship with contractual privity and a purely commercial purpose on both sides of the transaction. Open Internet protections, by contrast, apply to a context where there may be no direct negotiation and no direct agreement between key parties. Moreover, while broadband providers are commercial entities with commercial purposes, many of the parties seeking to route traffic to broadband subscribers are not.) Commenters also expressed concerns that the commercially reasonable standard would involve a multifactor framework that was not focused on the goals of this open Internet proceeding. In addition, some commenters expressed concern that the legal standard would require permission before innovation, thus creating higher barriers to entry and attendant transaction costs. Smaller edge providers expressed concern that they do not have the resources to fight against commercially unreasonable practices, which could result in an unfair playing field before the Commission. Still others argued that the standard would permit paid prioritization, which could disadvantage smaller entities and individuals. Given these concerns, we decline to adopt our proposed rule to prohibit practices that are not commercially reasonable. Instead, as discussed above, we adopt a governing standard that looks to whether consumers or edge providers face unreasonable interference or unreasonable disadvantages, and makes clear that the standard is not limited to whether a practice is agreeable to commercial parties.
d. Sponsored Data and Usage Allowances151. While our bright-line rule to treat paid prioritization arrangements as unlawful addresses technical prioritization, the record reflects mixed views about other practices, including usage allowances and sponsored data plans. Sponsored data plans (sometimes called zero-rating) enable broadband providers to exclude edge provider content from end users' usage allowances. On the one hand, evidence in the record suggests that these business models may in some instances provide benefits to consumers, with particular reference to their use in the provision of mobile services. Service providers contend that these business models increase choice and lower costs for consumers. Commenters also assert that sophisticated approaches to pricing also benefit edge providers by helping them distinguish themselves in the marketplace and tailor their services to consumer demands. Commenters assert that such sponsored data arrangements also support continued investment in broadband infrastructure and promote the virtuous cycle, and that there exist spillover benefits from sponsored data practices that should be considered. On the other hand, some commenters strongly oppose sponsored data plans, arguing that ''the power to exempt selective services from data caps seriously distorts competition, favors companies with the deepest pockets, and prevents consumers from exercising control over what they are able to access on the Internet,'' again with specific reference to mobile services. In addition, some commenters argue that sponsored data plans are a harmful form of discrimination. The record also reflects concerns that such arrangements may hamper innovation and monetize artificial scarcity.
152. We are mindful of the concerns raised in the record that sponsored data plans have the potential to distort competition by allowing service providers to pick and choose among content and application providers to feature on different service plans. At the same time, new service offerings, depending on how they are structured, could benefit consumers and competition. Accordingly, we will look at and assess such practices under the no-unreasonable interference/disadvantage standard, based on the facts of each individual case, and take action as necessary.
153. The record also reflects differing views over some broadband providers' practices with respect to usage allowances (also called ''data caps''). Usage allowances place limits on the volume of data downloaded by the end user during a fixed period. Once a cap has been reached, the speed at which the end user can access the Internet may be reduced to a slower speed, or the end user may be charged for excess data. Usage allowances may benefit consumers by offering them more choices over a greater range of service options, and, for mobile broadband networks, such plans are the industry norm today, in part reflecting the different capacity issues on mobile networks. Conversely, some commenters have expressed concern that such practices can potentially be used by broadband providers to disadvantage competing over-the-top providers. Given the unresolved debate concerning the benefits and drawbacks of data allowances and usage-based pricing plans, (Regarding usage-based pricing plans, there is similar disagreement over whether these practices are beneficial or harmful for promoting an open Internet.) we decline to make blanket findings about these practices and will address concerns under the no-unreasonable interference/disadvantage on a case-by-case basis.
3. Transparency Requirements To Protect and Promote Internet Openness154. In this section, we adopt enhancements to the existing transparency rule, which covers both content and format of disclosures by providers of broadband Internet access service. As the Commission has previously noted, disclosure requirements are among the least intrusive and most effective regulatory measures at its disposal. We find that the enhanced transparency requirements adopted in the present Order serve the same purposes as those required under the 2010 Open Internet Order: Providing critical information to serve end-user consumers, edge providers of broadband products and services, and the Internet community. The transparency rule, including the enhancements adopted today, also will aid the Commission in enforcing the other open Internet rules and in ensuring that no service provider can evade them through exploitation of narrowly-drawn exceptions for reasonable network management or through evasion of the scope of our rules.
155. In the 2014 Open Internet NPRM, we tentatively concluded that we should enhance the existing transparency rule for end users, edge providers, the Internet community, and the Commission to have the information they need to understand the services they receive and to monitor practices that could undermine the open Internet. The NPRM sought comment on a variety of possible enhancements, including whether to require tailored disclosures for specific constituencies (end users, edge providers, the Internet community); ways to make the content and format of disclosures more accessible and understandable to end users; specific changes to disclosures for network practices that would benefit edge providers; whether there are more effective or more comprehensive ways to measure network performance; whether to require providers to disclose meaningful information regarding source, location, speed, packet loss, and duration of congestion; and whether and how any enhancements should apply to mobile broadband providers in a manner different from their application to fixed broadband providers.
156. Based on the record compiled in response to those proposals, below we set forth targeted, incremental enhancements to the existing transparency rule. We first recap the existing transparency rule, which forms the baseline off of which we build today. Having established that baseline, we describe specific enhancements'--including refinements and expansions in the required disclosures of commercial terms, performance characteristics, and network practices; adoption of a requirement that broadband providers notify end users directly if their individual use of a network will trigger a network practice, based on their demand prior to a period of congestion, that is likely to have a significant impact on the use of the service. We then address a request to exempt small providers from enhancements to the transparency rule, discuss the relationship of the enhancements to the existing transparency rule, and note the role that we anticipate further guidance from Commission staff will continue to play in applying the transparency rule in practice. Lastly, we adopt a voluntary safe harbor (but not a requirement) for a standalone disclosure format that broadband providers may use in meeting the existing requirement to disclose information that meets the needs of end users.
a. The Existing Transparency Rule157. The D.C. Circuit in Verizon upheld the transparency rule, which remains in full force, applicable to both fixed and mobile providers. In enhancing this rule, we build off of the solid foundation established by the Open Internet Order. In that Order, the Commission concluded that effective disclosure of broadband providers' network management practices, performance, and commercial terms of service promotes competition, innovation, investment, end-user choice, and broadband adoption. As a result, the Commission adopted a transparency rule requiring both fixed and mobile providers to ''publicly disclose accurate information regarding the network management practices, performance, and commercial terms'' of their broadband Internet access service. The rule specifies that such disclosures be ''sufficient for consumers to make informed choices regarding the use of such services and for content, application, service, and device providers to develop, market, and maintain Internet offerings.''
158. The 2010 Open Internet Order went on to provide guidance on both the information to be disclosed and the method of disclosure. Within each category of required disclosure (network management practices, performance characteristics, and commercial terms), the Open Internet Order described the type of information to be disclosed. For example, under performance characteristics, the Commission specified, among other things, disclosure of ''expected and actual access speed and latency'' as well as the ''impact of specialized services.'' All disclosures were required to be made ''timely and prominently[,] in plain language accessible to current and prospective end users and edge providers, the Commission, and third parties who wish to monitor network management practices for potential violations of open Internet principles.''
159. In 2011 and 2014, Commission staff provided guidance on interpreting the transparency rule. For example, in addition to other points, the 2011 guidance issued by the Enforcement Bureau and Office of General Counsel (2011 Advisory Guidance) described the means by which fixed and mobile broadband providers should meet the requirement to disclose actual performance of the broadband Internet access services they offer and to disclose network management practices, performance, characteristics, and commercial terms ''at the point of sale.'' The 2011 Advisory Guidance also clarified the statement in the Open Internet Order that effective disclosures ''will likely include some or all of the'' information listed in paragraphs 56 and 98, but also that the list was ''not necessarily exhaustive, nor is it a safe harbor,'' and that ''there may be additional information, not included [in paragraphs 56 and 98], that should be disclosed for a particular broadband service to comply with the rule in light of relevant circumstances.'' Acknowledging the concern of some providers that ''they could be liable for failing to disclose additional types of information that they may not be aware are subject to disclosure,'' the 2011 Advisory Guidance stated that disclosure of the information described in those paragraphs ''will suffice for compliance with the transparency rule at this time.''
160. In an advisory issued in July 2014 (2014 Advisory Guidance), the Enforcement Bureau explained that the transparency rule ''prevents a broadband Internet access provider from making assertions about its service that contain errors, are inconsistent with the provider's disclosure statement, or are misleading or deceptive.'' Accurate disclosures ''ensure that consumers'--as well as the Commission and the public as a whole'--are informed about a broadband Internet access provider's network management practices, performance, and commercial terms.'' As the 2014 Advisory Guidance recognized, the transparency rule ''can achieve its purpose of sufficiently informing consumers only if advertisements and other public statements that broadband Internet access providers make about their services are accurate and consistent with any official disclosures that providers post on their Web sites or make available in stores or over the phone.'' Thus, ''a provider making an inaccurate assertion about its service performance in an advertisement, where the description is most likely to be seen by consumers, could not defend itself against a transparency rule violation by pointing to an `accurate' official disclosure in some other public place.'' Allowing such defenses would undermine the core purpose of the transparency rule.
161. Today, we build off of this baseline: The transparency rule requirements established in 2010, and interpreted by the 2011 and 2014 Advisory Guidance. We also take this opportunity to make two clarifications to the existing rule. First, all of the pieces of information described in paragraphs 56 and 98 of the Open Internet Order have been required as part of the current transparency rule, and we will continue to require the information as part of our enhanced rule. The only exception is the requirement to disclose ''typical frequency of congestion,'' which we no longer require since it is superseded by more precise disclosures already required by the rule, such as actual performance. Second, the requirement that all disclosures made by a broadband provider be accurate includes the need to maintain the accuracy of these disclosures. Thus, whenever there is a material change in a provider's disclosure of commercial terms, network practices, or performance characteristics, the provider has a duty to update the disclosure in a manner that is ''timely and prominently disclosed in plain language accessible to current and prospective end users and edge providers, the Commission, and third parties who wish to monitor network management practices for potential violations of open Internet principles.'' (We decline, however, to adopt a specific timeframe concerning the updating of disclosures following a material change (e.g., 24 hours).) For these purposes, a ''material'' change is any change that a reasonable consumer or edge provider would consider important to their decisions on their choice of provider, service, or application.
b. Enhancing the Transparency Rule162. We adopt the tentative conclusion in the 2014 Open Internet NPRM to enhance the existing transparency rule in certain respects. We conclude that enhancing the existing transparency rule as described below will better enable end-user consumers to make informed choices about broadband services by providing them with timely information tailored more specifically to their needs, and will similarly provide edge providers with the information necessary to develop new content, applications, services, and devices that promote the virtuous cycle of investment and innovation.
(i) Enhancements to Content of Required Disclosures163. As noted above, the existing transparency rule requires specific disclosures with respect to network practices, performance characteristics, and commercial terms. As we noted in the 2014 Open Internet NPRM, the Commission has continued to receive numerous complaints from consumers suggesting that broadband providers are not providing information that end users and edge providers need to receive. We noted that consumers continue to express concern that the speed of their service falls short of advertised speeds, that billed amounts are greater than advertised rates, and that consumers are unable to determine the source of slow or congested service. In addition, we noted that end users are often surprised that broadband providers slow or terminate service based on ''excessive use'' or based on other practices, and that consumers report confusion regarding data thresholds or caps. Further, the need for enhanced transparency is bolstered by the needs of certain user groups who rely on broadband as their primary avenue for communications, such as people with disabilities. These enhancements will also serve edge providers. The record supports our conclusions that more specific and detailed disclosures are necessary to ensure that edge providers can ''develop, market, and maintain Internet offerings.'' Such disclosures will also help the wider Internet community monitor provider practices to ensure compliance with our Open Internet rules and providers' own policies.
164. Commercial Terms. The existing transparency rule defines the required disclosure of ''commercial terms'' to include pricing, privacy policies, and redress options. While we do not take additional action concerning the requirement to disclose privacy policies and redress options, the record demonstrates need for specific required disclosures about price and related terms. In particular, we specify the disclosures of commercial terms for prices, other fees, and data caps and allowances as follows:
Price'--The full monthly service charge. Any promotional rates should be clearly noted as such, specify the duration of the promotional period, and note the full monthly service charge the consumer will incur after the expiration of the promotional period.Other Fees'--All additional one time and/or recurring fees and/or surcharges the consumer may incur either to initiate, maintain, or discontinue service, including the name, definition, and cost of each additional fee. (The Commission agrees that the magnitude of these fees bears on consumer decision-making when choosing or switching providers. As a result, the provision of explicit information regarding these fees by providers both promotes competition and assists in consumer decision making.) These may include modem rental fees, installation fees, service charges, and early termination fees, among others. Data Caps and Allowances'--Any data caps or allowances that are a part of the plan the consumer is purchasing, as well as the consequences of exceeding the cap or allowance (e.g., additional charges, loss of service for the remainder of the billing cycle).To be clear, these disclosures may have been required in certain circumstances under the existing transparency rule in order to provide information ''sufficient for consumers to make informed choices.'' Here, we now require that this information always be disclosed. In addition, per the current rule, disclosures of commercial terms shall also include the provider's privacy policies (''[f]or example, whether network management practices entail inspection of network traffic, and whether traffic information is stored, provided to third parties, or used by the carrier for non-network management purposes'') and redress options (''practices for resolving end-user and edge provider complaints and questions'').
165. Performance Characteristics. The existing transparency rule requires broadband providers to disclose accurate information regarding network performance for each broadband service they offer. This category includes a service description (''[a] general description of the service, including the service technology, expected and actual access speed and latency, and the suitability of the service for real-time applications'') and the impact of specialized services (''[i]f applicable, what specialized services, if any, are offered to end users, and whether and how any specialized services may affect the last-mile capacity available for, and the performance, or broadband Internet access service'').
166. With respect to network performance, we adopt the following enhancements:
The existing transparency rule requires disclosure of actual network performance. In adopting that requirement, the Commission mentioned speed and latency as two key measures. Today we include packet loss as a necessary part of the network performance disclosure.We expect that disclosures to consumers of actual network performance data should be reasonably related to the performance the consumer would likely experience in the geographic area in which the consumer is purchasing service.We also expect that network performance will be measured in terms of average performance over a reasonable period of time and during times of peak usage. (We recognize that parties have expressed concern about providing disclosures about network performance on a real-time basis. The enhancements to the transparency rule we adopt today do not include such a requirement. Given that the performance of mobile broadband networks is subject to a greater array of factors than fixed networks, we note that disclosure of a range of speeds may be more appropriate for mobile broadband consumers.)We clarify that, for mobile broadband providers, the obligation in the existing transparency rule to disclose network performance information for ''each broadband service'' refers to separate disclosures for services with each technology (e.g., 3G and 4G). Furthermore, with the exception of small providers, mobile broadband providers today can be expected to have access to reliable actual data on performance of their networks representative of the geographic area in which the consumer is purchasing service'--through their own or third-party testing'--that would be the source of the disclosure. (Per the 2011 Advisory Guidance, those mobile broadband providers that ''lack reasonable access'' to reliable information on their network performance metrics may disclose a ''Typical Speed Range (TSR)'' to meet the requirement to disclose actual performance. In any event, we expect that mobile broadband providers' disclosure of actual performance data will be based on accepted industry practices and principles of statistical validity.) Commission staff also continue to refine the mobile MBA program, which could at the appropriate time be declared a safe harbor for mobile broadband providers. (Participation in the Measuring Broadband America (MBA) program continues to be a safe harbor for fixed broadband providers in meeting the requirement to disclose actual network performance. The 2011 Advisory Guidance further stated that fixed providers that choose not to participate in MBA may measure and disclose performance of their broadband offerings using the MBA's methodology, internal testing, consumer speed data, or other data, including reliable, relevant data from third-party sources. Various software-based broadband performance tests are available as potential tools for end users and companies to estimate actual broadband performanceAs noted above, we anticipate that the measurement methodology used for the MBA project will continue to be refined, which in turn will enhance the effectiveness of network performance disclosures generally.)We decline to otherwise codify specific methodologies for measuring the ''actual performance'' required by the existing transparency rule. We find that, as in 2010, there is benefit in permitting measurement methodologies to evolve and improve over time, with further guidance from Bureaus and Offices'--like in 2011'--as to acceptable methodologies. (We expect that acceptable methodologies will be grounded in commonly accepted principles of scientific research, good engineering practices, and transparency.) We delegate authority to our Chief Technologist to lead this effort.
167. In addition, the existing rule concerning performance characteristics requires disclosure of the ''impact'' of specialized services, including ''what specialized services, if any, are offered to end users, and ''whether and how any specialized services may affect the last-mile capacity available for, and the performance of, broadband Internet access service.'' As discussed below, today we more properly refer to these services as ''non-BIAS data services.'' Given that the Commission will closely scrutinize offerings of non-BIAS data services and their impact on competition, we clarify that in addition to the requirements of the existing rule concerning what was formerly referred to as ''specialized services,'' disclosure of the impact of non-BIAS data services includes a description of whether the service relies on particular network practices and whether similar functionality is available to applications and services offered over broadband Internet access service.
168. The 2014 Open Internet NPRM tentatively concluded that we should require that broadband providers disclose meaningful information regarding the source, location, timing, speed, packet loss, and duration of network congestion. As discussed above, we continue to require disclosure of actual network speed and latency (as in 2010), and also require disclosure of packet loss. We decline at this time to require disclosure of the source, location, timing, or duration of network congestion, noting that congestion may originate beyond the broadband provider's network and the limitations of a broadband provider's knowledge of some of these performance characteristics. (Short-term congestion occurs whenever instantaneous demand exceeds capacity. Since demand often consists of the aggregation of a large number of users' traffic, it is technologically difficult to determine the sources of each component of the aggregate traffic) We also asked whether the Commission should expand its transparency efforts to include measurement of other aspects of service. We decline at this time to require disclosure of packet corruption or jitter, noting that commenters expressed concerns regarding the difficulty of defining metrics for such performance characteristics. (Furthermore, corrupted packets may be included in the packet loss performance characteristic.)
169. Network Practices. The existing transparency rule requires disclosure of network practices, including specific disclosures related to congestion management, application-specific behavior, device attachment rules, and security. (Additionally, ''mobile broadband providers should follow the guidance the Commission provided to licensees of the upper 700 MHz C Block spectrum regarding compliance with their disclosure obligations, particularly regarding disclosure to third-party application developers and device manufacturers of criteria and approval procedures (to the extent applicable). For example, these disclosures include, to the extent applicable, establishing a transparent and efficient approval process for third parties, as set forth in section 27.16(d).''2010 Open Internet Order (76 FR 59129-01, 59210, Sept. 23, 2011), 25 FCC Rcd at 17959, para. 98 As discussed above, this information remains part of the transparency rule, with the exception of the requirement to disclose the ''typical frequency of congestion.'') Today, in recognition of significant consumer concerns presented in the record, we further clarify that disclosure of network practices shall include practices that are applied to traffic associated with a particular user or user group, including any application-agnostic degradation of service to a particular end user. (For example, a broadband Internet access service provider may define user groups based on the service plan to which users are subscribed, the volume of data that users send or receive over a specified time period of time or under specific network conditions, or the location of users.) We also clarify that disclosures of user-based or application-based practices should include the purpose of the practice, which users or data plans may be affected, the triggers that activate the use of the practice, the types of traffic that are subject to the practice, and the practice's likely effects on end users' experiences. While some of these disclosures may have been required in certain circumstances under the existing transparency rule, here we clarify that this information should always be disclosed. These disclosures with respect to network practices are necessary: for the public and the Commission to know about the existence of network practices that may be evaluated under the rules, for users to understand when and how practices may affect them, and for edge providers to develop Internet offerings.
170. The 2014 Open Internet NPRM asked whether we should require disclosures that permit end users to identify application-specific usage or to distinguish which user or device contributed to which part of the total data usage. We decline at this time to require such disclosures, noting that collection of application-specific usage by a broadband provider may require use of deep packet inspection practices that may pose privacy concerns for consumers.
(ii) Enhancements to the Means of Disclosure171. The existing transparency rule requires, at a minimum, the prominent display of disclosures on a publicly available Web site and disclosure of relevant information at the point of sale. (Broadband providers must actually disclose information required for consumers to make an ''informed choice'' regarding the purchase or use of broadband services at the point of sale. It is not sufficient for broadband providers simply to provide a link to their disclosures.) We enhance the rule to require a mechanism for directly notifying end users if their individual use of a network will trigger a network practice, based on their demand prior to a period of congestion, that is likely to have a significant impact on the end user's use of the service. The purpose of such notification is to provide the affected end users with sufficient information and time to consider adjusting their usage to avoid application of the practice.
(iii) Small Businesses172. The record reflects the concerns of some commenters that enhanced transparency requirements will be particularly burdensome for smaller providers. ACA, for example, suggests that smaller providers be exempted from the provision of such disclosures. ACA states that its member companies are complying with the current transparency requirements, which ''strike the right balance between edge provider and consumer needs for pertinent information and the need to provide ISPs with some flexibility in how they disclose pertinent information.'' We believe that the transparency enhancements adopted today are modest in nature. For example, we have declined to require certain disclosures proposed in the 2014 Open Internet NPRM such as the source of congestion, packet corruption, and jitter in recognition of commenter concerns with the benefits and difficulty of making these particular disclosures. We also do not require ''real-time'' disclosures. These proposed disclosures appear to form the bulk of ACA's concerns. Nevertheless, we take seriously the concerns that ACA raises and those of smaller broadband providers generally.
173. Out of an abundance of caution, we grant a temporary exemption for these providers, with the potential for that exemption to become permanent. It is unclear, however, how best to delineate the boundaries of this exception. Clearly, it should include those providers likely to be most disproportionately affected by new disclosure requirements. ACA ''acknowledge[s] that Congress and the Commission have defined `small' in various ways.'' One metric to which ACA points is the approach that the Commission used in its 2013 Rural Call Completion Order, which excepted providers with 100,000 or fewer subscriber lines, aggregated across all affiliates, from certain recordkeeping, retention, and reporting rules. We adopt this definition for purposes of the temporary exemption that we adopt today. Accordingly, we hereby adopt a temporary exemption from the enhancements to the transparency rule for those providers of broadband Internet access service (whether fixed or mobile) with 100,000 or fewer broadband subscribers as per their most recent Form 477, aggregated over all the providers' affiliates.
174. Yet we believe that both the appropriateness of the exemption and the threshold require further deliberation. Accordingly, the exemption we adopt is only temporary. We delegate to the Consumer & Governmental Affairs Bureau (CGB) the authority to determine whether to maintain the exemption and, if so, the appropriate threshold for it. We direct CGB to seek comment on the question and to adopt an Order announcing whether it is maintaining an exemption and at what level by no later than December 15, 2015. Until such time, notwithstanding any approval received by the Office of Management & Budget for the enhancements adopted today, such enhancements will not apply to providers of broadband Internet access service with 100,000 or fewer subscribers.
175. To be clear, all providers of broadband Internet access service, including small providers, remain subject to the existing transparency rule adopted in 2010. The temporary exemption adopted today, and any permanent exemption adopted by CGB, applies only to the enhanced disclosures described above. As ACA states in its request for an exemption for small providers, ''[i]rrespective of which definition of small that is chosen by the Commission, exempt ISPs would still be required to comply with the transparency requirements contained in section 8.3 of the Commission's rules today.''
(iv) Safe Harbor for Form of Disclosure to Consumers176. The existing transparency rule requires disclosures sufficient both to enable ''consumers to make informed choices regarding use of [broadband] services''and''content, application, service, and device providers to develop, market, and maintain Internet offerings.'' As in 2010, a central purpose of the transparency rule remains to provide information useful to both constituencies. As we noted in the 2014 Open Internet NPRM, we are concerned that disclosures are not consistently provided in a manner that adequately satisfies the divergent informational needs of all affected parties. For example, disclosures at times are ill-defined; do not consistently measure service offerings, making comparisons difficult; or are not easily found on provider Web sites. In the 2014 Open Internet NPRM, we therefore proposed requiring separate disclosure statements to meet both the basic informational needs of consumers and the more technical needs of edge providers.
177. The record reflects concerns, however, as to a requirement to offer tailored disclosures. For example, ACA states that disclosures tailored to edge providers ''would require small ISPs, who manage their own networks and may only have a handful of network operators, engineers, and head end staff to make onerous expenditures of both personnel hours and financial resources.'' Bright House ''question[s] the feasibility of creating disclosures tailored to the varied and potentially unique needs of the hundreds of such providers, particularly with no reciprocal obligation.'' Similarly, Tech Freedom and the International Center for Law and Economics assert that ''requiring ISPs to tailor their disclosures to the various parties the ISPs deal with (i.e., consumers, edge providers, the Internet community, and the FCC) greatly increases the burden of complying with these disclosures, especially as such disclosures must be periodically updated to reflect changes to ISPs' network management practices.'' In light of these concerns, we decline to require separate disclosures at this time.
178. In declining to mandate separate disclosures, however, we do not intend to diminish the existing requirement for disclosure of information sufficient for both end users and edge providers. The Commission has not established that a single disclosure would always satisfy the rule; rather, it merely stated broadband providers ''may be able'' to satisfy the transparency rule through a single disclosure. We are especially concerned that in some cases a single disclosure statement may be too detailed and technical to meet the needs of consumers, rather than a separate consumer-focused disclosure. As noted in the 2014 Open Internet NPRM, both academic research and the Commission's experience with consumer issues have demonstrated that the manner in which providers display information to consumers can have as much impact on consumer decisions as the information itself. A stand-alone format has proven effective in conveying useful information in other contexts. We also note that the OIAC and OTI have proposed the use of a label to disclose the most important information to users of broadband service. In addition, the United Kingdom's largest Internet service providers agreed to produce a comparable table of traffic management information called a Key Facts Indicator.
179. Therefore, we are establishing a voluntary safe harbor for the format and nature of the required disclosure to consumers. To take advantage of the safe harbor, a broadband provider must provide a consumer-focused, standalone disclosure. We decline, however, to mandate the exact format for such disclosures at this time. (We note that although we have sought comment on what format would be most effective, the record is lacking on specific details as to how such a disclosure should be formatted.) Rather, we seek the advice of our Consumer Advisory Committee, which is composed of both industry and consumer interests, including those representing people with disabilities. (The Committee's purpose is to make recommendations to the Commission regarding consumer issues within Commission's jurisdiction and to facilitate the participation of consumers (including people with disabilities and underserved populations, such as Native Americans and persons living in rural areas) in proceedings before the Commission.) We find that the Committee's experience with consumer disclosure issues (For example, the Committee has studied the value of standardized disclosures and their contents.) makes it an ideal body to recommend a disclosure format that should be clear and easy to read'--similar to a nutrition label'--to allow consumers to easily compare the services of different providers. We believe the CAC is uniquely able to recommend a disclosure format that both anticipates and addresses provider compliance burdens while ensuring the utility of the disclosures for consumers.
180. We direct the CAC to formulate and submit to the Commission a proposed disclosure format, based on input from a broad range of stakeholders, within six months of the time that its new membership is reconstituted, but, in any event, no later than October 31, 2015. The disclosure format must be accessible to persons with disabilities. We expect that the CAC will consider whether to propose the same or different formats for fixed and mobile broadband providers. In addition, we expect that the CAC will consider whether and how a standard format for mobile broadband providers will allow providers to continue to differentiate their services competitively, as well as how mobile broadband providers can effectively disclose commercial terms to consumers regarding myriad plans in a manner that is not administratively burdensome. The Commission delegates authority to the Wireline Competition Bureau, Wireless Telecommunications Bureau, and Consumer & Governmental Affairs Bureau to issue a Public Notice announcing whether the proposed format or formats meet its expectations for the safe harbor for making consumer-facing disclosures. If the format or formats do not meet such expectations, the Bureaus may ask the CAC to consider changes and submit a revised proposal for the Bureaus' review within 90 days of the Bureaus' request.
181. Broadband providers that voluntarily adopt this format will be presumed to be in compliance with the requirement to make transparency disclosures in a format that meets the needs of consumers. Providers that choose instead to maintain their own format'--for example, a unitary disclosure intended both for consumers and edge providers'--will bear the burden, if challenged, of explaining how a single disclosure statement meets the needs of both consumers and edge providers. To be clear, use of the consumer disclosure format is a safe harbor with respect to the format of the required disclosure to consumers. A broadband provider meeting the safe harbor could still be found to be in violation of the rule, for example, if the content of that disclosure (e.g., prices) is misleading or inaccurate, or the provider makes misleading or inaccurate statements in another context, such as advertisements or other statements to consumers. Moreover, broadband providers using the safe harbor should continue to provide the more detailed disclosure statement for the benefit of edge providers.
c. Enforcement and Relationship to the Existing Transparency Rule182. Despite these enhancements to the existing transparency rule, we clarify that we are being specific in order to provide additional guidance. The transparency rule has always required broadband providers to disclose information ''sufficient for consumers to make informed choices'' (Even where a particular category of information discussed above was not specified in the 2010 Open Internet Order that does not mean that disclosure of that information has not consistently been required under the transparency rule. If such information is necessary for a consumer to make an ''informed choice'' regarding the purchase or use of broadband service, disclosure of that information is a fundamental requirement of the transparency rule.) and that test could, in particular circumstances, include the enhancements that we expressly adopt today. We also reiterate that under both the existing transparency rule and the enhancements adopted in this Order, all disclosures that broadband providers make about their network practices, performance, and commercial terms of broadband services must be accurate and not misleading.
183. In the 2014 Open Internet NPRM we also requested comment on how the Commission could best enforce the transparency rule. In particular, we noted that a key objective of the transparency rule is to enable the Commission to collect information necessary to access, report, and enforce the open Internet rules. For example, we sought comment on whether to require broadband providers to certify that they are in compliance with the required disclosures and/or submit reports containing descriptions of current disclosure practices, particularly if the existing flexible approach is amended to require more specific disclosures. Some commenters caution against measures that are unnecessary, susceptible to abuse, or burdensome. Others express support for stronger or more efficient enforcement mechanisms. At this time we decline to require certification by broadband providers. Should evidence be provided, however, that certification is necessary, we will revisit this issue at a later date.
184. We also remind providers that if their disclosure statements fail to meet the requirements established in 2010 and enhanced today, they may be subject to investigation and forfeiture. The Enforcement Bureau will closely scrutinize failure by providers to meet their obligations in fulfilling the transparency rule.
d. Role of Further Advisory Guidance185. The 2011 and 2014 Advisory Guidance documents illustrate the role of further guidance from Commission staff in interpreting and applying the general requirements of the transparency rule. We anticipate that as technology, the marketplace, and the needs of consumers, edge providers, and other stakeholders evolve, further such guidance may be appropriate concerning the transparency rule, including with respect to the enhancements adopted today. The most immediate example concerns ongoing improvements and evolutions in the methodologies for measuring broadband providers' actual performance, as discussed in further detail above. We also point out that broadband providers are able to seek advisory opinions from the Enforcement Bureau concerning any of the open Internet regulations, including the transparency rule.
D. Scope of the Rules186. The open Internet rules we adopt today apply to fixed and mobile broadband Internet access service. We make clear, however, that while the definition of broadband Internet access service encompasses arrangements for the exchange of Internet traffic, the open Internet rules we adopt today do not apply to that portion of the broadband Internet access service.
1. Broadband Internet Access Service187. As discussed below, we continue to define ''broadband Internet access service'' (BIAS) as:
188. ''Broadband Internet access service'' continues to include services provided over any technology platform, including but not limited to wire, terrestrial wireless (including fixed and mobile wireless services using licensed or unlicensed spectrum), and satellite. ''Broadband Internet access service'' encompasses all providers of broadband Internet access service, as we delineate them here, regardless of whether they lease or own the facilities used to provide the service. (The Commission has consistently determined that resellers of telecommunications services are telecommunications carriers, even if they do not own any facilities. We note that the rules apply not only to facilities-based providers of broadband service but also to resellers of that service. In applying these obligations to resellers, we recognize, as the Commission has in other contexts, that consumers will expect the protections and benefits afforded by providers' compliance with the rules, regardless of whether the consumer purchase service from a facilities-based provider or a reseller. We note that a reseller's obligation under the rules is independent from the obligation of the facilities-based provider that supplies the underlying service to the reseller, though the extent of compliance by the underlying facilities-based provider will be a factor in assessing compliance by the reseller.) ''Fixed'' broadband Internet access service refers to a broadband Internet access service that serves end users primarily at fixed endpoints using stationary equipment, such as the modem that connects an end user's home router, computer, or other Internet access device to the network. The term encompasses the delivery of fixed broadband over any medium, including various forms of wired broadband services (e.g., cable, DSL, fiber), fixed wireless broadband services (including fixed services using unlicensed spectrum), and fixed satellite broadband services. ''Mobile'' broadband Internet access service refers to a broadband Internet access service that serves end users primarily using mobile stations. It also includes services that use smartphones or mobile-network-enabled tablets as the primary endpoints for connection to the Internet, (We note that ''public safety services,'' as defined in section 337 of the Act, are excluded from the definition of mobile broadband Internet access service.) as well as mobile satellite broadband services. (We provide these definitions of ''fixed'' and ''mobile'' for illustrative purposes. In contrast to the Commission's 2010 Open Internet Order, here we are applying the same regulations to both fixed and mobile broadband Internet access services.)
189. We continue to define ''mass market'' as ''a service marketed and sold on a standardized basis to residential customers, small businesses, and other end-user customers such as schools and libraries.'' To be clear, ''mass market'' includes broadband Internet access services purchased with support of the E-rate and Rural Healthcare programs, as well as any broadband Internet access service offered using networks supported by the Connect America Fund (CAF). (In the 2010 Open Internet Order, the Commission found that ''mass market'' included broadband Internet access services purchased with support of the E-rate program. Since that time, the Commission has extended universal service support for broadband services through the Lifeline and Rural Health Care programs. Thus, for the same reasons the Commission defined mass market services to include BIAS purchased with the support of the E-rate program in 2010, we now find that mass market also includes BIAS purchased with the support of Lifeline and Rural Health Care programs.) To the extent that institutions of higher learning purchase mass market services, those institutions would be included within the scope of the schools and libraries portion of our definition. The term ''mass market'' does not include enterprise service offerings, which are typically offered to larger organizations through customized or individually-negotiated arrangements, or special access services.
190. We adopt our tentative conclusion in the 2014 Open Internet NPRM that broadband Internet access service does not include virtual private network (VPN) services, content delivery networks (CDNs), hosting or data storage services, or Internet backbone services (to the extent those services are separate from broadband Internet access service). The Commission has historically distinguished these services from ''mass market'' services and, as explained in the 2014 Open Internet NPRM, they ''do not provide the capability to receive data from all or substantially all Internet endpoints.'' We do not disturb that finding here. Likewise, when a user employs, for example, a wireless router or a Wi-Fi hotspot to create a personal Wi-Fi network that is not intentionally offered for the benefit of others, he or she is not providing a broadband Internet access service under our definition.
191. We again decline to apply the open Internet rules to premises operators'--such as coffee shops, bookstores, airlines, private end-user networks (e.g. libraries and universities), and other businesses that acquire broadband Internet access service from a broadband provider to enable patrons to access the Internet from their respective establishments'--to the extent they may be offering broadband Internet access service as we define it today. (While we decline to apply open Internet rules to premises operators to the extent they may offer broadband Internet access service, that decision does not affect other obligations that may apply to premises operators under the Act.) We find, as we did in 2010, that a premises operator that purchases BIAS is an end user and that these services ''are typically offered by the premise operator as an ancillary benefit to patrons.'' Further, applying the open Internet rules to the provision of broadband service by premises operators would have a dampening effect on these entities' ability and incentive to offer these services. As such, we do not apply the open Internet rules adopted today to premises operators. (We reiterate the guidance in the 2010 Open Internet Order that although not bound by our rules, we encourage premises operators to disclose relevant restrictions on broadband service they make available to their patrons.) The record evinces no significant disagreement with this analysis. (We note, however, that this exception does not affect other obligations that a premise operator may have independent of our open Internet rules.)
192. Our definition of broadband Internet access service includes services ''by wire or radio,'' which encompasses mobile broadband service. Thus, our definition of broadband Internet access service also extends to the same services provided by mobile providers. As discussed above, the record demonstrates the pressing need to apply open Internet rules to fixed and mobile broadband services alike, and changes in the mobile marketplace no longer counsel in favor of treating mobile differently under the rules. Thus, we apply the open Internet rules adopted today to both fixed and mobile networks. (Although we adopt the same rules for both fixed and mobile services, we recognize that with respect to the reasonable network management exception, the rule may apply differently to fixed and mobile broadband providers.)
193. As we discuss more fully below, broadband Internet access service encompasses the exchange of Internet traffic by an edge provider or an intermediary with the broadband provider's network. Below, we find that broadband Internet access service is a telecommunications service, subject to sections 201, 202, and 208 (along with key enforcement provisions). (We note that broadband Internet access services are also subject to sections 222, 224, 225, 254, and 255.) As a result, the Commission will be available to hear disputes regarding arrangements for the exchange of traffic with a broadband Internet access provider raised under sections 201 and 202 on a case-by-case basis: an appropriate vehicle for enforcement where disputes are primarily over commercial terms and that involve some very large corporations, including companies like transit providers and CDNs, that act on behalf of smaller edge providers. However, for reasons discussed more fully below, we exclude this portion of broadband Internet access service'--interconnection with a broadband Internet access service provider's network'--from application of our open Internet rules. We note that this exclusion also extends to interconnection with CDNs.
2. Internet Traffic Exchange194. In the 2010 Open Internet Order, the Commission applied its open Internet rules ''only as far as the limits of a broadband provider's control over the transmission of data to or from its broadband customers,'' and excluded the exchange of traffic between networks from the scope of the rules. In the 2014 Open Internet NPRM, the Commission tentatively concluded that it should maintain this approach, but explicitly sought comment on suggestions that the Commission should expand the scope of the open Internet rules to cover issues related to Internet traffic exchange. (As a general matter, Internet traffic exchange involves the exchange of IP traffic between networks. An Internet traffic exchange arrangement determines which networks exchange traffic and the destinations to which those networks will deliver that traffic. In aggregate, Internet traffic exchange arrangements allow an end user of the Internet to interact with other end users on other Internet networks, including content or services that make themselves available by having a public IP address, similar to how the global public switched telephone network consists of networks that route calls based on telephone numbers. When we adopted the 2014 Open Internet NPRM, the Chairman issued a separate, written statement suggesting that ''the question of interconnection (`peering') between the consumer's network provider and the various networks that deliver to that ISP . . . is a different matter that is better addressed separately.''2014 Open Internet NPRM, 29 FCC Rcd at 5647. While this statement reflected the Notice's tentative conclusion concerning Internet traffic exchange, it in no way detracts from the fact that the Notice also sought comment on ''whether we should change our conclusion,'' whether to adopt proposals to ''expand the scope of the open Internet rules to cover issues related to traffic exchange,'' and how to ''ensure that a broadband provider would not be able to evade our open Internet rules by engaging in traffic exchange practices that would be outside the scope of the rules as proposed.'')
195. As discussed below, we classify fixed and mobile broadband Internet access service as telecommunications services. The definition for broadband Internet access service includes the exchange of Internet traffic by an edge provider or an intermediary with the broadband provider's network. We note that anticompetitive and discriminatory practices in this portion of broadband Internet access service can have a deleterious effect on the open Internet, and therefore retain targeted authority to protect against such practices through sections 201, 202, and 208 of the Act (and related enforcement provisions), but will forbear from a majority of the other provisions of the Act. Thus, we conclude that, at this time, application of the no-unreasonable interference/disadvantage standard and the prohibitions on blocking, throttling, and paid prioritization to the Internet traffic exchange arrangements is not warranted.
196. Trends in Internet Traffic Exchange. Internet traffic exchange is typically based on commercial negotiations. Changes in consumer behavior, traffic volume, and traffic composition have resulted in new business models for interconnection. Since broadband Internet access service providers cannot, on their own, connect to every end point on the Internet in order to provide full Internet access to their customers, they historically paid third-party backbone service providers for transit. Backbone service providers interconnected upstream until traffic reached Tier 1 backbone service providers, which peered with each other and thereby provided their customer networks with access to the full Internet. In this hierarchical arrangement of networks, broadband Internet access providers negotiated with backbone service providers; broadband Internet access providers generally did not negotiate with edge providers to gain access to content. However, in recent years, new business models of Internet traffic exchange have emerged, premised on changes in traffic flows and in broadband Internet access provider networks. A number of factors drive these trends in Internet traffic exchange.
197. Critically, the growth of online streaming video services has sparked further evolution of the Internet. Content providers have come to rely on the services of commercial and private CDNs, which cache content close to end users, providing increased quality of service and avoiding transit costs. While CDNs rely on transit to feed the array of CDN cache servers, they deliver traffic to broadband Internet access service providers via transit service or by entering into peering arrangements, directly interconnecting with broadband Internet access service providers.
198. In addition, several large broadband Internet access service providers, such as AT&T, Comcast, Time Warner Cable, and Verizon, have built or purchased their own backbones, giving them the ability to directly interconnect with other networks and edge providers and thereby lowering and eliminating payments to third-party transit providers. These interconnection arrangements are ''peering,'' involving the exchange of traffic only between the two networks and their customers, rather than paid transit, which provides access to the full Internet over a single interconnection. Peering gives the participants greater control over their traffic and any issues arising with the traffic exchange are limited to those parties, and not other parties over other interconnection links. Historically, broadband Internet access service providers paid for transit and therefore had an incentive to agree to settlement-free peering with a CDN to reduce transit costs; however, where large broadband Internet access service providers have their own national backbones and have settlement-free peering with other backbones, they may no longer have an incentive to agree to settlement-free peering with CDNs in order to avoid transit costs. As shown below in Chart 1, the evolution from reliance on transit to peering arrangements also means an evolution from a traffic exchange arrangement that provides access to the full Internet to a traffic exchange arrangement that only provides for the exchange of traffic from a specific network provider and its customers.
199. Recent Disputes. Recently, Internet traffic exchange disputes have reportedly involved not de-peering, as was more frequently the case in the last decade, but rather degraded experiences caused by congested ports between providers. In addition, these disputes have evolved from conflicts that may last a few days, to disputes that have been sustained for well over a year, and have gone from disputes between backbone service networks, to disputes between providers of broadband Internet access service and transit service providers, CDNs, or edge providers. The typical dispute has involved, on one side, a large broadband provider, and on the other side, a commercial transit provider (such as Cogent or Level 3) and/or a large CDN. Multiple parties point out, however, that interconnection problems can harm more than just the parties in a dispute. When links are congested and capacity is not augmented, the networks'--and applications, large and small, running over the congested links into and out of those networks'--experience degraded quality of service due to reduced throughput, increased packet loss, increased delay, and increased jitter. At the end of the day, consumers bear the harm when they experience degraded access to the applications and services of their choosing due to a dispute between a large broadband provider and an interconnecting party. Parties also assert that these disputes raise concerns about public safety and network reliability. To address these growing concerns, a number of parties have called for extending the rules proposed in the 2014 Open Internet NPRM to Internet traffic exchange practices.
200. The record reflects competing narratives. Some edge and transit providers assert that large broadband Internet access service providers are creating artificial congestion by refusing to upgrade interconnection capacity at their network entrance points for settlement-free peers or CDNs, thus forcing edge providers and CDNs to agree to paid peering arrangements. These parties suggest that paid arrangements resulting from artificially congested interconnection ports at the broadband Internet access service provider network edge could create the same consumer harms as paid arrangements in the last-mile, and lead to paid prioritization, fast lanes, degradation of consumer connections, and ultimately, stifling of innovation by edge providers. Further, edge providers argue that they are covering the costs of carrying this traffic through the network, bringing it to the gateway of the Internet access service, unlike in the past where both parties covered their own costs to reach the Tier 1 backbones where traffic would then be exchanged on a settlement-free basis. Edge and transit providers argue that the costs of adding interconnection capacity or directly connecting with edge providers are de minimis. Further, they assert that traffic ratios ''are arbitrarily set and enforced and are not reflective of how [broadband providers] sell broadband connections and how consumers use them.'' Thus, these edge and transit providers assert that a focus on only the last-mile portion of the Internet traffic path will fail to adequately constrain the potential for anticompetitive behavior on the part of broadband Internet access service providers that serve as gatekeepers to the edge providers, transit providers, and CDNs seeking to deliver Internet traffic to the broadband providers' end users.
201. In contrast, large broadband Internet access service providers assert that edge providers such as Netflix are imposing a cost on broadband Internet access service providers who must constantly upgrade infrastructure to keep up with the demand. Large broadband Internet access service providers explain that when an edge provider sends extremely large volumes of traffic to a broadband Internet access service provider'--e.g., through a CDN or a third-party transit service provider'--the broadband provider must invest in additional interconnection capacity (e.g., new routers or ports on existing routers) and middle-mile transport capacity in order to accommodate that traffic, exclusive of ''last-mile'' costs from the broadband Internet access provider's central offices, head ends, or cell sites to end-user locations. Commenters assert that if the broadband Internet access service provider absorbs these interconnection and transport costs, all of the broadband provider's subscribers will see their bills rise. They argue that this is unfair to subscribers who do not use the services, like Netflix, that are driving the need for additional capacity. Broadband Internet access service providers explain that settlement-free peering fundamentally is a barter arrangement in which each side receives something of value. These parties contend that if the other party is only sending traffic, it is not contributing something of value to the broadband Internet access service provider.
202. Mechanism to Resolve Traffic Exchange Disputes. As discussed, Internet traffic exchange agreements have historically been and will continue to be commercially negotiated. We do not believe that it is appropriate or necessary to subject arrangements for Internet traffic exchange (which are subsumed within broadband Internet access service) to the rules we adopt today. We conclude that it would be premature to adopt prescriptive rules to address any problems that have arisen or may arise. (We decline to adopt these and similar types of proposals for the same reasons we decline to apply the open Internet rules to traffic exchange.) It is also premature to draw policy conclusions concerning new paid Internet traffic exchange arrangements between broadband Internet access service providers and edge providers, CDNs, or backbone services. (For instance, Akamai expresses concern that adoption of rules governing interconnection could be used as a justification by some broadband providers to refuse direct interconnection to CDNs and other content providers generally, on the theory that connecting with any CDN necessitates connecting with all CDNs, regardless of technical feasibility. We do not intend such a result by our decision today to assert authority over interconnection.) While the substantial experience the Commission has had over the last decade with ''last-mile'' conduct gives us the understanding necessary to craft specific rules based on assessments of potential harms, we lack that background in practices addressing Internet traffic exchange. For this reason, we adopt a case-by-case approach, which will provide the Commission with greater experience. Thus, we will continue to monitor traffic exchange and developments in this market.
203. At this time, we believe that a case-by-case approach is appropriate regarding Internet traffic exchange arrangements between broadband Internet access service providers and edge providers or intermediaries'--an area that historically has functioned without significant Commission oversight. (We note, however, that the Commission has looked at traffic exchange in the context of mergers and, sometimes imposed conditions on traffic exchange.) Given the constantly evolving market for Internet traffic exchange, we conclude that at this time it would be difficult to predict what new arrangements will arise to serve consumers' and edge providers' needs going forward, as usage patterns, content offerings, and capacity requirements continue to evolve. Thus, we will rely on the regulatory backstop prohibiting common carriers from engaging in unjust and unreasonable practices. Our ''light touch'' approach does not directly regulate interconnection practices. Of course, this regulatory backstop is not a substitute for robust competition. The Commission's regulatory and enforcement oversight, including over common carriers, is complementary to vigorous antitrust enforcement. Indeed, mobile voice services have long been subject to Title II's just and reasonable standard and both the Commission and the Antitrust Division of the Department of Justice have repeatedly reviewed mergers in the wireless industry. Thus, it will remain essential for the Commission, as well as the Department of Justice, to continue to carefully monitor, review, and where appropriate, take action against any anti-competitive mergers, acquisitions, agreements or conduct, including where broadband Internet access services are concerned.
204. Broadband Internet access service involves the exchange of traffic between a last-mile broadband provider and connecting networks. (We disagree with commenters who argue that arrangements for Internet traffic exchange are private carriage arrangements, and thus not subject to Title II. As we explain below in today's Declaratory Ruling, Internet traffic exchange is a component of broadband Internet access service, which meets the definition of ''telecommunications service.'') The representation to retail customers that they will be able to reach ''all or substantially all Internet endpoints'' necessarily includes the promise to make the interconnection arrangements necessary to allow that access. As a telecommunications service, broadband Internet access service implicitly includes an assertion that the broadband provider will make just and reasonable efforts to transmit and deliver its customers' traffic to and from ''all or substantially all Internet endpoints'' under sections 201 and 202 of the Act. In any event, BIAS provider practices with respect to such arrangements are plainly ''for and in connection with'' the BIAS service. Thus, disputes involving a provider of broadband Internet access service regarding Internet traffic exchange arrangements that interfere with the delivery of a broadband Internet access service end user's traffic are subject to our authority under Title II of the Act. (We note that the Commission has forborne from application of many of the requirements of Title II to broadband Internet access service.)
205. We conclude that our actions regarding Internet traffic exchange arrangements are reasonable based on the record before us, which demonstrates that broadband Internet access providers have the ability to use terms of interconnection to disadvantage edge providers and that consumers' ability to respond to unjust or unreasonable broadband provider practices are limited by switching costs. These findings are limited to the broadband Internet access services we address today. (We observe that should a complaint arise regarding BIAS provider Internet traffic exchange practices, practices by edge providers (and their intermediaries) would be considered as part of the Commission's evaluation as to whether BIAS provider practices were ''just and reasonable'' under the Act.) When Internet traffic exchange breaks down'--regardless of the cause'--it risks preventing consumers from reaching the services and applications of their choosing, disrupting the virtuous cycle. We recognize the importance of timely review in the midst of commercial disputes. The Commission will be available to hear disputes raised under sections 201 and 202 on a case-by-case basis. We believe this is an appropriate vehicle for enforcement where disputes are primarily between sophisticated entities over commercial terms and that include companies, like transit providers and CDNs, that act on behalf of smaller edge providers. We also observe that section 706 provides the Commission with an additional, complementary source of authority to ensure that Internet traffic exchange practices do not harm the open Internet. As explained above, we have decided not to adopt specific regulations that would detail the practices that would constitute circumvention of the open Internet regulations we adopt today. Instead, and in a manner similar to our treatment of non-BIAS services, we will continue to monitor Internet traffic exchange arrangements and have the authority to intervene to ensure that they are not harming or threatening to harm the open nature of the Internet.
206. The record also reflects a concern that our decision to adopt this regulatory backstop violates the Administrative Procedure Act. (Verizon claims that ''in light of the Commission's past statements on interconnection, to suddenly regulate [interconnection] agreements for the first time in a final rule in this proceeding would violate the notice and comment requirements of the Administrative Procedure Act'' and that even issuing a Further Notice of Proposed Rulemaking would not allow the Commission to impose Title II regulations on interconnection services. The dissenting statements likewise assert that the 2014 Open Internet NPRM did not provide notice of the possibility that the Commission would assert authority over interconnection.) We disagree. To be clear, consistent with the NPRM's proposal, we are not applying the open Internet rules we adopt today to Internet traffic exchange. Rather, certain regulatory consequences flow from the Commission's classification of BIAS, including the traffic exchange component, as falling within the ''telecommunications services'' definition in the Act. In all events, the 2014 Open Internet NPRM provided clear notice about the possibility of expanding the scope of the open Internet rules to cover issues related to traffic exchange. (Section 553 provides that ''[g]eneral notice of proposed rulemaking shall be published in the Federal Register,'' and that ''[a]fter notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making'' through submission of comments. 5 U.S.C. 553(b), (c). The Commission published the NPRM in the Federal Register at 79 FR 37448, July 1, 2014. It also made clear that the Commission was considering whether to reclassify retail broadband services. In addition, the 2014 Open Internet NPRM asked: ''How can we ensure that a broadband provider would not be able to evade our open Internet rules by engaging in traffic exchange practices that would be outside the scope of the rules as proposed?'' As discussed above, our assertion of authority over Internet traffic exchange practices addresses that question by providing us with the necessary case-by-case enforcement tools to identify practices that may constitute such evasion and address them. Further, to the extent that any doubts remain about whether the 2014 Open Internet NPRM provided sufficient notice, the approach adopted today is also a logical outgrowth of the original proposal included in the 2014 Open Internet NPRM. The numerous submissions in the record at every stage of the proceeding seeking to influence the Commission in its decision to adopt policies regulating Internet traffic exchange illustrate that the Commission not only gave interested parties adequate notice of the possibility of a rule, but that parties considered Commission action on that proposal a real possibility.
3. Non-BIAS Data Services207. In the 2014 Open Internet NPRM, the Commission tentatively concluded that it should not apply its conduct-based rules to services offered by broadband providers that share capacity with broadband Internet access service over providers' last-mile facilities, while closely monitoring the development of these services to ensure that broadband providers are not circumventing the open Internet rules. After reviewing the record, we believe the best approach is to adopt this tentative conclusion to permit broadband providers to offer these types of services while continuing to closely monitor their development and use. While the 2010 Open Internet Order and the 2014 Open Internet NPRM used the term ''specialized services'' to refer to these types of services, the term ''non-BIAS data services'' is a more accurate description for this class of services. While the services discussed below are not broadband Internet access service, and thus the rules we adopt do not apply to these services, we emphasize that we will act decisively in the event that a broadband provider attempts to evade open Internet protections (e.g., by claiming that a service that is the equivalent of Internet access is a non-BIAS data service not subject to the rules we adopt today).
208. We provide the following examples of services and characteristics of those services that, at this time, likely fit within the category of services that are not subject to our conduct-based rules. As indicated in the 2010 Open Internet Order, some broadband providers' existing facilities-based VoIP and Internet Protocol-video offerings would be considered non-BIAS data services under our rules. Further, the 2010 Open Internet Order also noted that connectivity bundled with e-readers, heart monitors, or energy consumption sensors would also be considered other data services to the extent these services are provided by broadband providers over last-mile capacity shared with broadband Internet access service. Additional examples of non-BIAS data services may include limited-purpose devices such as automobile telematics, and services that provide schools with curriculum-approved applications and content.
209. These services may generally share the following characteristics identified by the Open Internet Advisory Committee. First, these services are not used to reach large parts of the Internet. Second, these services are not a generic platform'--but rather a specific ''application level'' service. And third, these services use some form of network management to isolate the capacity used by these services from that used by broadband Internet access services.
210. We note, however, that non-BIAS data services may still be subject to enforcement action. Similar to the Commission's approach in 2010, if the Commission determines that a particular service is ''providing a functional equivalent of broadband Internet access service, or . . . is [being] used to evade the protections set forth in these rules,'' we will take appropriate enforcement action. Further, if the Commission determines that these types of service offerings are undermining investment, innovation, competition, and end-user benefits, we will similarly take appropriate action. We are especially concerned that over-the-top services offered over the Internet are not impeded in their ability to compete with other data services. (Further, we anticipate that consumers of competing over-the-top services will not be disadvantaged in their ability to access 911 service.)
211. The record overwhelmingly supports our decision to continue treating non-BIAS data services differently than broadband Internet access service under the open Internet rules. This approach will continue to drive additional investment in broadband networks and provide end users with valued services without otherwise constraining innovation. Further, as noted by numerous commenters, since other data services were permitted in the 2010 Open Internet Order, we have seen little resulting evidence of broadband providers using these services to undermine the 2010 rules.
212. Nevertheless, non-BIAS data services still could be used to evade the open Internet rules. Due to these concerns, we will continue to monitor the market for non-BIAS data services to ensure that these services are not causing or threatening to cause harm to the open nature of the Internet. Since the 2010 Open Internet Order, broadband Internet access providers have been required to disclose the impact of non-BIAS data services on the performance of and the capacity available for broadband Internet access services. As discussed in detail above, we will continue to monitor the existence and effects of non-BIAS data services under the broadband providers' transparency obligations.
213. We disagree with commenters who argue that the Commission should adopt a more-detailed definition for non-BIAS data services to safeguard against any such circumvention of the rules. Several commenters provided definitions of what they believe should constitute non-BIAS data services. Others, however, expressed concerns that a formal definition of non-BIAS data services risks potentially limiting future innovation and investment, ultimately negatively impacting consumer welfare. We share these concerns and thus decline to further define what constitutes ''non-BIAS data services'' or adopt additional policies specific to such services at this time. Again, however, we will closely monitor the development and use of non-BIAS data services and have authority to intervene if these services are utilized in a manner that harms the open Internet.
4. Reasonable Network Management214. The 2014 Open Internet NPRM proposed to retain a reasonable network management exception to the conduct-based open Internet rules, following the approach adopted in the 2010 Open Internet Order that permitted exceptions for ''reasonable network management'' practices to the no-blocking and no unreasonable discrimination rules. The 2014 Open Internet NPRM also tentatively concluded that the Commission should retain the definition of reasonable network management adopted as part of the 2010 rules that ''[a] network management practice is reasonable if it is appropriate and tailored to achieving a legitimate network management purpose, taking into account the particular network architecture and technology of the broadband Internet access service.''
215. The record broadly supports maintaining an exception for reasonable network management. We agree that a network management exception to the no-blocking rule, the no-throttling rule, and the no-unreasonable interference/disadvantage standard is necessary for broadband providers to optimize overall network performance and maintain a consistent quality experience for consumers while carrying a variety of traffic over their networks. (As discussed above, the transparency rule does not include an exception for reasonable network management. We clarify, however, that the transparency rule ''does not require public disclosure of competitively sensitive information or information that would compromise network security or undermine the efficacy of reasonable network management practices.'') Therefore, the no-blocking rule, the no-throttling rule, and the no-unreasonable interference/disadvantage standard will be subject to reasonable network management for both fixed and mobile providers of broadband Internet access service. In addition to retaining the exception, we retain the definition of reasonable network management with slight modifications:
216. For a practice to even be considered under this exception, a broadband Internet access service provider must first show that the practice is primarily motivated by a technical network management justification rather than other business justifications. If a practice is primarily motivated by such an other justification, such as a practice that permits different levels of network access for similarly situated users based solely on the particular plan to which the user has subscribed, then that practice will not be considered under this exception. The term ''particular network architecture and technology'' refers to the differences across broadband access platforms of any kind, including cable, fiber, DSL, satellite, unlicensed Wi-Fi, fixed wireless, and mobile wireless.
217. As noted above, reasonable network management is an exception to the no-blocking rule, no-throttling rule, and no-unreasonable interference/disadvantage standard, but not to the rule against paid prioritization. (Paid prioritization would be evaluated under the standards set forth in section II.C.1.c supra) This is because unlike conduct implicating the no-blocking, no-throttling, or no-unreasonable interference/disadvantage standard, paid prioritization is not a network management practice because it does not primarily have a technical network management purpose. (For purposes of the open Internet rules, prioritization of affiliated content, applications, or services is also considered a form of paid prioritization.) When considering whether a practice violates the no-blocking rule, no-throttling rule, or no-unreasonable interference/disadvantage standard, the Commission may first evaluate whether a practice falls within the exception for reasonable network management.
218. Evaluating Network Management Practices. The 2014 Open Internet NPRM proposed that the Commission adopt the same approach for determining the scope of network management practices considered to be reasonable as adopted in the 2010 Open Internet Order. (The Commission decided to determine the scope of reasonable network management on a case-by-case basis in the Open Internet Order and we maintain those same factors today.) We recognize the need to ensure that the reasonable network management exception will not be used to circumvent the open Internet rules while still allowing broadband providers flexibility to experiment and innovate as they reasonably manage their networks. We therefore elect to maintain a case-by-case approach. The case-by-case review also allows sufficient flexibility to address mobile-specific management practices because, by the terms of our rule, a determination of whether a network management practice is reasonable takes into account the particular network architecture and technology. We also note that our transparency rule requires disclosures that provide an important mechanism for monitoring whether providers are inappropriately exploiting the exception for reasonable network management.
219. To provide greater clarity and further inform the Commission's case-by-case analysis, we offer the following guidance regarding legitimate network management purposes. We also note that, similar to the 2010 reasonable network management exception, broadband providers may request a declaratory ruling or an advisory opinion from the Commission before deploying a network management practice, but are not required to do so.
220. As with the network management exception in the 2010 Open Internet Order, broadband providers may implement network management practices that are primarily used for, and tailored to, ensuring network security and integrity, including by addressing traffic that is harmful to the network, such as traffic that constitutes a denial-of-service attack on specific network infrastructure elements. Likewise, broadband providers may also implement network management practices that are primarily used for, and tailored to, addressing traffic that is unwanted by end users. Further, we reiterate the guidance of the 2010 Open Internet Order that network management practices that alleviate congestion without regard to the source, destination, content, application, or service are also more likely to be considered reasonable network management practices in the context of this exception. (As in the no throttling rule and the no unreasonable interference or unreasonable disadvantage standard, we include classes of content, applications, services, or devices.) In evaluating congestion management practices, a subset of network management practices, we will also consider whether the practice is triggered only during times of congestion and whether it is based on a user's demand during the period of congestion.
221. We also recognize that some network management practices may have a legitimate network management purpose, but also may be exploited by a broadband provider. We maintain the guidance underlying the 2010 Open Internet Order' s case-by-case analysis that a network management practice is more likely to be found reasonable if it is transparent, and either allows the end user to control it or is application-agnostic.
222. As in 2010, we decline to adopt a more detailed definition of reasonable network management. For example, one proposal suggests that the Commission limit the circumstances in which network management techniques can be used so they would only be reasonable if they were used temporarily, for exceptional circumstances, and have a proportionate impact to solve a targeted problem. We acknowledge the advantages a more detailed definition of network management can have on long-term network investment and transparency, but at this point, there is not a need to place such proscriptive limits on broadband providers. (While some commenters note that there have not been any major technological changes in how broadband providers manage traffic since 2010, others indicate that broadband providers have acquired additional techniques that allow them to manage traffic in real-time.) Furthermore, a more detailed definition of reasonable network management risks quickly becoming outdated as technology evolves. Case-by-case analysis will allow the Commission to use the conduct-based rules adopted today to take action against practices that are known to harm consumers without interfering with broadband providers' beneficial network management practices. (Beneficial practices include protecting their Internet access services against malicious content or offering a service limited to offering ''family friendly'' materials to end users who desire only such content.)
223. We believe that the reasonable network management exception provides both fixed and mobile broadband providers sufficient flexibility to manage their networks. We recognize, consistent with the consensus in the record, that the additional challenges involved in mobile broadband network management mean that mobile broadband providers may have a greater need to apply network management practices, including mobile-specific network management practices, and to do so more often to balance supply and demand while accommodating mobility. As the Commission observed in 2010, mobile network management practices must address dynamic conditions that fixed, wired networks typically do not, such as the changing location of users as well as other factors affecting signal quality. The ability to address these dynamic conditions in mobile network management is especially important given capacity constraints many mobile broadband providers face. Moreover, notwithstanding any limitations on mobile network management practices necessary to protect the open Internet, we anticipate that mobile broadband providers will continue to be able to use a multitude of tools to manage their networks, including an increased number of network management tools available in 4G LTE networks.
224. We note in a similar vein that providers relying on unlicensed Wi-Fi networks have specific network management needs. For example, these providers can ''face spectrum constraints and congestion issues that can pose particular network-management challenges'' and also ''must accept and manage interference from other users in the unlicensed bands.'' Again, the Commission will take into account when and how network management measures are applied as well as the particular network architecture and technology of the broadband Internet access service in question, in determining if a network management practice is reasonable. For these reasons, we reject the argument that rules with exceptions only for reasonable network management practices would ''tie the hands of operators and make it more challenging to meet consumers' needs'' or that ''the mere threat of post hoc regulatory review . . . would disrupt and could chill optimal network management practices.'' In recognizing the unique challenges, network architecture, and network management of mobile broadband networks (and others, such as unlicensed Wi-Fi networks), we conclude that the reasonable network management exception addresses this concern and strikes an appropriate balance between the need for flexibility and ensuring the Commission has the tools necessary to maintain Internet openness.
E. Enforcement of the Open Internet Rules1. Background225. Timely and effective enforcement of the rules we adopt in this Order is crucial to preserving an open Internet, enhancing competition and innovation, and providing clear guidance to consumers and other stakeholders. As has been the case since we adopted our original open Internet rules in 2010, we anticipate that many disputes that will arise can and should be resolved by the parties without Commission involvement. We encourage parties to resolve disputes through informal discussions and private negotiations whenever possible. To the extent disputes are not resolved, the Commission will continue to provide backstop mechanisms to address them. We also will proactively monitor compliance and take strong enforcement action against parties who violate the open Internet rules.
226. In the 2010 Open Internet Order, the Commission established a two-tiered framework for enforcing open Internet rules. The Commission allowed parties to file informal complaints pursuant to section 1.41 of our rules and promulgated new procedures to govern formal complaints alleging violations of the open Internet rules. This framework was not affected by the D.C. Circuit's decision in Verizon. It therefore remains in effect and will apply to complaints regarding the rules we adopt in this Order. Informal complaints provide end users, edge providers, and others with a simple and efficient vehicle for bringing potential open Internet violations to the attention of the Commission. The formal complaint rules permit any person to file a complaint with the Commission alleging an open Internet rule violation and to participate in an adjudicatory proceeding to resolve the complaint. In addition to these mechanisms for resolving open Internet complaints, the Commission continuously monitors press reports and other public information, which may lead the Enforcement Bureau to initiate an investigation of potential open Internet rule violations.
227. In the 2014 Open Internet NPRM, the Commission sought comment on the efficiency and functionality of the complaint processes adopted in the 2010 Open Internet Order and on mechanisms we should consider to improve enforcement and dispute resolution. We tentatively concluded that our open Internet rules should include at least three fundamental elements: (1) Legal certainty, so that broadband providers, edge providers, and end users can plan their activities based on clear Commission guidance; (2) flexibility to consider the totality of the facts in an environment of dynamic innovation; and (3) effective access to dispute resolution. We affirm the importance of these principles below and discuss several enhancements to our existing open Internet complaint rules to advance them. In addition, we adopt changes to our complaint processes to ensure that they are accessible and user-friendly to consumers, small businesses, and other interested parties, as well as changes to ensure that that our review of complaints is inclusive and informed by groups with relevant technical or other expertise.
2. Designing an Effective Enforcement Processa. Legal Certainty228. We sought comment in the 2014 Open Internet NPRM on ways to design an effective enforcement process that provides legal certainty and predictability to the marketplace. In addition to our current complaint resolution framework, we requested input on what other forms of guidance would be helpful. We solicited feedback on whether the Commission should: (1) Establish an advisory opinion process, akin to ''business review letters'' issued by the Department of Justice (DOJ), and/or non-binding staff opinions, through which parties could ask the Commission for a statement of its current enforcement intentions with respect to certain practices under the new rules; and (2) publish enforcement advisories that provide additional insight into the application of the rules. Many commenters recognized the benefits of clear rules and greater predictability regarding open Internet protections.
(i) Advisory Opinions229. We conclude that use of advisory opinions similar to those issued by DOJ's Antitrust Division is in the public interest and would advance the Commission's goal of providing legal certainty. (We decline to adopt non-binding staff opinions in light of our decision to establish an advisory opinion process similar to the DOJ Antitrust Division's business review letter approach, as well as existing voluntary mediation processes to resolve open Internet disputes that are available through the Enforcement Bureau's Market Disputes and Resolutions Division.) Although the Commission historically has not used advisory opinions to promote compliance with our rules, we conclude that they have the potential to serve as useful tools to provide clarity, guidance, and predictability concerning the open Internet rules. (Parties also have the option to file a petition for declaratory ruling under section 1.2 of the Commission's rules, 47 CFR 1.2. In contrast to declaratory rulings, advisory opinions may only relate to prospective conduct, and the Enforcement Bureau will not seek comment on advisory opinions via public notice.) Advisory opinions will enable companies to seek guidance on the propriety of certain open Internet practices before implementing them, enabling them to be proactive about compliance and avoid enforcement actions later. The Commission may use advisory opinions to explain how it will evaluate certain types of behavior and the factors that will be considered in determining whether open Internet violations have occurred. Because these opinions will be publicly available, we believe that they will reduce the number of disputes by providing guidance to the industry.
230. In this Order, we adopt rules promulgating basic requirements for obtaining advisory opinions, as well as limitations on their issuance. Any entity that is subject to the Commission's jurisdiction may request an advisory opinion regarding its own proposed conduct that may implicate the rules we adopt in this Order, the rules that remain in effect from the 2010 Open Internet Order, or any other rules or policies related to the open Internet that may be adopted in the future.
231. Requests for advisory opinions may be filed via the Commission's Web site or with the Office of the Secretary and must be copied to the Commission staff specified in the rules. We delegate authority to issue advisory opinions to the Enforcement Bureau, which will coordinate with other Bureaus and Offices on the issuance of opinions. The Enforcement Bureau will have discretion to choose whether it will respond to the request. If the Bureau declines to respond to a request, it will inform the requesting party in writing. As a general matter, the Bureau will be more likely to respond to requests where the proposed conduct involves a substantial question of fact or law and there is no clear Commission or court precedent, or the subject matter of the request and consequent publication of Commission advice is of significant public interest. In addition, the Bureau will decline to respond to requests if the same conduct is the subject of a current government investigation or proceeding, including any ongoing litigation or open rulemaking.
232. Requests for advisory opinions must relate to prospective or proposed conduct that the requesting party intends to pursue. The Enforcement Bureau will not respond to hypothetical questions or inquiries about proposals that are mere possibilities. The Bureau also will not respond to requests for opinions that relate to ongoing or prior conduct, and the Bureau may initiate an enforcement investigation to determine whether such conduct violates the open Internet rules.
233. Requests for advisory opinions should include all material information sufficient for Commission staff to make a determination on the proposed conduct; however, staff will have discretion to ask parties requesting opinions, as well as other parties that may have information relevant to the request or that may be impacted by the proposed conduct, for additional information that the staff deems necessary to respond to the request. Because advisory opinions will rely on full and truthful disclosures by the requesting entities, requesters must certify that factual representations made to the Enforcement Bureau are truthful and accurate, and that they have not intentionally omitted any material information from the request. Advisory opinions will expressly state that they rely on the representations made by the requesting party, and that they are premised on the specific facts and representations in the request and any supplemental submissions.
234. Although the Enforcement Bureau will attempt to respond to requests for advisory opinions expeditiously, we decline to establish any firm deadlines to rule on them or issue response letters. The Commission appreciates that if the advisory opinion process is not timely, it will be less valuable to interested parties. However, response times will likely vary based on numerous factors, including the nature and complexity of the issues, the magnitude and sufficiency of the request and the supporting information, and the time it takes for the requester to respond to staff requests for additional information. An advisory opinion will provide the Enforcement Bureau's conclusion regarding whether or not the proposed conduct will comply with the open Internet rules. The Bureau will have discretion to indicate in an advisory opinion that it does not intend to take enforcement action based on the facts, representations, and warranties made by the requesting party. The requesting party may rely on the opinion only to the extent that the request fully and accurately contains all the material facts and representations necessary for the opinion and the situation conforms to the situation described in the request for opinion. The Enforcement Bureau will not bring an enforcement action against a requesting party with respect to any action taken in good faith reliance upon an advisory opinion if all of the relevant facts were fully, completely, and accurately presented to the Bureau, and where such action was promptly discontinued upon notification of rescission or revocation of the Commission's or the Bureau's approval.
235. Advisory opinions will be issued without prejudice to the Enforcement Bureau's ability to reconsider the questions involved, or to rescind or revoke the opinion. Similarly, because advisory opinions issued at the staff level are not formally approved by the full Commission, they will be issued without prejudice to the Commission's right to later rescind the findings in the opinion. Because advisory opinions will address proposed future conduct, they necessarily will not concern any case or controversy that is ripe for appeal.
236. The Enforcement Bureau will make advisory opinions available to the public. In order to provide meaningful guidance to other stakeholders, the Bureau will also publish the initial request for guidance and any associated materials. Thus, the rules that we adopt establish procedures for entities soliciting advisory opinions to request confidential treatment of certain information.
237. Many commenters support the use of advisory opinions as a means for the Commission to provide authoritative guidance to parties about the application of open Internet rules and the Commission's enforcement intentions. In addition, some commenters suggest that review letters and staff opinions should be voluntary. We agree that solicitation of advisory opinions should be purely voluntary, and that failure to seek such an opinion will not be used as evidence that an entity's practices are inconsistent with our rules.
238. The Wireless Internet Service Providers Association (WISPA) opposes the adoption of an advisory opinion process ''because it assumes an inherent uncertainty in the rules and creates a `mother may I' regime'--essentially creating a system where a broadband provider must ask the Commission for permission when making business decisions.'' According to WISPA, ''[t]his system would increase regulatory uncertainty and stifle broadband providers from innovating new technologies or business methods. It also would be expensive for a small provider to implement, requiring legal and professional expertise.''
239. We find that WISPA's concerns are misguided. Because requests for advisory opinions will be entirely voluntary, we disagree with the contention that their use would force broadband providers to seek permission before implementing new policies or technologies and thereby stifle innovation. In addition, we agree with other commenters that advisory opinions would provide more, not less, certainty regarding the legality of proposed business practices.
(ii) Enforcement Advisories240. We conclude that the periodic publication of enforcement advisories will advance the Commission's goal of promoting legal certainty regarding the open Internet rules. In the 2014 Open Internet NPRM, we inquired whether the Commission should issue guidance in the form of enforcement advisories that provide insight into the application of Commission rules. Enforcement advisories are a tool that the Commission has used in numerous contexts, including the current open Internet rules. We asked whether continued use of such advisories would be helpful where issues of potential general application come to the Commission's attention, and whether these advisories should be considered binding policy of the Commission or merely a recitation of staff views.
241. Numerous commenters maintain that the Commission should continue to use enforcement advisories to offer clarity, guidance, and predictability concerning the open Internet rules. We agree. Enforcement advisories do not create new policies, but rather are recitations and reminders of existing legal standards and the Commission's current enforcement intentions. (We disagree with the contention that public notice and comment should be a prerequisite for the Commission to issue an enforcement advisory. The Commission uses its rulemaking procedures when we are adopting rule changes that require notice and comment. Conversely, enforcement advisories are used to remind parties of existing legal standards.) We see no need to deviate from our current practice of issuing such advisories to periodically remind parties about legal standards regarding the open Internet rules.
b. Flexibility(i) Means of Enforcement and General Enforcement Mechanisms242. We will preserve the Commission's existing avenues for enforcement of open Internet rules'--self-initiated investigation by the Enforcement Bureau, informal complaints, and formal complaints. Commenters agree with the value of retaining these three main mechanisms for commencing enforcement of potential open Internet violations, as this combination ensures multiple entry points to the Commission's processes and gives both complainants and the Commission enforcement flexibility.
243. In addition, the Commission will continue to honor requests for informal complaints to remain anonymous, and will also continue to maintain flexible channels for reporting suspected violations, like confidential calls to the Enforcement Bureau. Although some commenters raise concerns about anonymous complaint filings, others stress the importance of having the option to request anonymity when filing an informal complaint. We note, however, that complainants who are not anonymous frequently have better success getting their concerns addressed because the service provider can then troubleshoot their specific concerns.
244. We also adopt our tentative conclusion in the 2014 Open Internet NPRM that enforcement of the transparency rule should proceed under the same dispute mechanisms that apply to other rules contained in this Order. We believe that providing both complainants and the Commission with flexibility to address violations of the transparency rule will continue to be important and that the best means to ensure compliance with both the transparency rule and the other rules we adopt today is to apply a uniform and consistent enforcement approach.
245. Finally, we conclude that violations of the open Internet rules will be subject to any and all penalties authorized under the Communications Act and rules, (Section 706 was enacted as part of the 1996 Telecommunications Act, and it is therefore subject to any and all penalties under the Act and our rules. See Verizon, 740 F.3d at 650 (''Congress expressly directed that the 1996 Act . . . be inserted into the Communications Act of 1934.'') (quoting AT&T Corp. v. Iowa Utilities Board, 525 U.S. 366, 377 (1999)).) including but not limited to admonishments, citations, notices of violation, notices of apparent liability, monetary forfeitures and refunds, cease and desist orders, revocations, and referrals for criminal prosecution. Moreover, negotiated Consent Decrees can contain damages, restitution, compliance requirements, attorneys' fees, declaratory relief, and equitable remedies like injunctions, equitable rescissions, reformations, and specific performance.
(ii) Case-by-Case Analysis246. The 2014 Open Internet NPRM emphasized that the process for providing and promoting an open Internet must be flexible enough to accommodate the ongoing evolution of Internet technology. We therefore tentatively concluded that the Commission should continue to use a case-by-case approach, taking into account the totality of the circumstances, in considering alleged violations of the open Internet rules.
247. We affirm our proposal to continue to analyze open Internet complaints on a case-by-case basis. (We reject the suggestion that the Commission promulgate additional rules of conduct because it is unrealistic to expect that in this varied and rapidly evolving technological environment the agency will be able to anticipate the specific conduct that will give rise to future disputes.) We agree with commenters that flexible rules, administered through case-by-case analysis, will enable us to pursue meaningful enforcement, consider consumers' individual concerns, and account for rapidly changing technology.
(iii) Fact-Finding Processes248. In the 2014 Open Internet NPRM, we sought comment about how to most effectively structure a flexible fact finding process in analyzing open Internet complaints. We asked what level of evidence should be required in order to bring a claim. With regard to formal complaint proceedings, we also asked what showing should be required for the burden of production to shift from the party bringing the claim to the defendant, as well as whether parties could seek expedited treatment.
249. Informal Complaints. Our current rules permitting the filing of informal complaints include a simple and straightforward evidentiary standard. Under section 1.41 of our rules, ''[r]equests should set forth clearly and concisely the facts relied upon, the relief sought, the statutory and/or regulatory provisions (if any) pursuant to which the request is filed and under which relief is sought, and the interest of the person submitting the request.'' Although our rules do not establish any specific pleading requirements for informal complaints, parties filing them should attempt to provide the Commission with sufficient information and specific facts that, if proven true, would constitute a violation of the open Internet rules.
250. We find that our existing informal complaint rule offers an accessible and effective mechanism for parties'--including consumers and small businesses with limited resources'--to report possible noncompliance with our open Internet rules without being subject to burdensome evidentiary or pleading requirements. We conclude that there is no basis in the record for modifying the existing standard and decline to do so.
251. Formal Complaints. Our current open Internet formal complaint rules provide broad flexibility to adapt to the myriad potential factual situations that might arise. For example, as noted in the 2010 Open Internet Order, some cases can be resolved based on the pleadings if the complaint and answer contain sufficient factual material to decide the case. A simple case could thus be adjudicated in an efficient, streamlined manner. For more complex matters, the existing rules give the Commission discretion to require other procedures, including discovery, briefing, a status conference, oral argument, an evidentiary hearing, or referral to an administrative law judge (ALJ). Similarly, the rules provide the Commission discretion to grant temporary relief where appropriate.
252. In addition, our open Internet formal complaint process already contemplates burden shifting. (As we noted in the 2010 Open Internet Order, our current processes permit the Commission to shift the burden of production where appropriate.) Generally, complainants bear the burden of proof and must demonstrate by a preponderance of the evidence that an alleged violation has occurred. A complainant must plead with specificity the basis of its claim and provide facts and documentation, when possible, to establish a prima facie rule violation. Defendants must answer each claim with particularity and furnish facts, supported by documentation or affidavit, demonstrating that the challenged practice complies with our rules. Defendants do not have the option of merely pointing out that the complainant has failed to meet his or her burden; they must show that they are in compliance with the rules. The complainant then has an opportunity to respond to the defendant's submission. We retain our authority to shift the burden of production when, for example, the evidence necessary to assess the alleged unlawful practice is predominately in the possession of the broadband provider. If a complaining party believes the burden of production should shift, it should explain why in the complaint. Complainants also must clearly state the relief requested. We conclude that we should retain our existing open Internet procedural rules and that all formal complaints that relate to open Internet disputes, including Internet traffic exchange disputes, will be subject to those rules. Although comparable to the section 208 formal complaint rules, the open Internet rules are less burdensome on complainants, who in this context are likely to be consumers or small edge providers with limited resources. (The section 208 rules, for example, require complainants to submit information designations, proposed findings of fact and conclusions of law, and affidavits demonstrating the basis for complainant's belief for unsupported allegations and why complainant could not ascertain facts from any source. See, e.g.,47 CFR 1.721(a) (5), (6), (10). The open Internet formal complaint rules do not contain similar requirements.) Moreover, as described above, the open Internet procedural rules allow the Commission broader flexibility in tailoring proceedings to fit particular cases. (For example, under the open Internet rules, the Commission may order an evidentiary hearing before an administrative law judge (ALJ) or Commission staff. See47 CFR 8.14(e)(1), (g). The section 208 rules contain no such provision. In addition, unlike the section 208 rules, the open Internet rules do not contain numerical limits on discovery requests. Compare id. section 8.14(f) with id. section 1.729(a).)
253. Several commenters stress the need for speedy resolution of complaints, given the rapid pace of Internet commerce and the potential consumer harms and market chilling effects deriving from slow resolution. While we share these concerns, we decline to adopt fixed, short deadlines for resolving formal complaints but pledge to move expeditiously. As noted in the 2010 Open Internet Order, the Commission may shorten deadlines or otherwise revise procedures to expedite the adjudication of complaints. Additionally, the Commission will determine, on the basis of the evidence before it, whether temporary relief should be afforded any party pending final resolution of a complaint and, if so, the nature of any such temporary relief. (The Supreme Court has affirmed the Commission's authority to impose interim injunctive relief pursuant to section 4(i) of the Act.) As noted above, some open Internet cases may be straightforward and suitable for decision in a 60 to 90 day timeframe. Other cases may be more factually and technologically complex, requiring more time for the parties to pursue discovery and build an adequate record, and sufficient time for the Commission to make a reasoned decision. Therefore, we find that the existing process'--allowing parties to request expedited treatment'--best fits the needs of potential open Internet formal complaints.
c. Effective Access To Dispute Resolution254. In this section, we adopt the proposal from the 2014 Open Internet NPRM to establish an ombudsperson to assist consumers, businesses, and organizations with open Internet complaints and questions by ensuring these parties have effective access to the Commission's processes that protect their interests. The record filed supports our conclusion that these parties would benefit from having an ombudsperson as a point of contact within the Commission for questions and complaints.
255. Comments in support of the establishment of an ombudsperson clearly demonstrate the range of groups a dedicated ombudsperson can serve. For example, the American Association of People with Disabilities expressed particular interest in the potential of the ombudsperson to monitor concerns regarding accessibility and the open Internet. In addition, the comments of Higher Education Libraries asked that libraries be amongst the groups served by the ombudsperson and those of the Alaska Rural Coalition expressed interest in the ombudsperson also being accessible to small carriers with concerns. In contrast, some commenters expressed concerns about the creation of a dedicated ombudsperson. However, as described below, the ombudsperson will work as a point of contact and a source of assistance as needed, not as an advocate or as an officer who must be approached for approval, addressing many of these concerns.
256. The Open Internet Ombudsperson will serve as a point of contact to provide assistance to individuals and organizations with questions or complaints regarding the open Internet to ensure that small and often unrepresented groups reach the appropriate bureaus and offices to address specific issues of concern. For example, the ombudsperson will be able to provide initial assistance with the Commission's dispute resolution procedures by directing such parties to the appropriate templates for formal and informal complaints. We expect the ombudsperson will assist interested parties in less direct but equally important ways. These could include conducting trend analysis of open Internet complaints and, more broadly, market conditions, that could be summarized in reports to the Commission regarding how the market is functioning for various stakeholders. The ombudsperson may investigate and bring attention to open Internet concerns, and refer matters to the Enforcement Bureau for potential further investigation. The ombudsperson will be housed in the Consumer & Governmental Affairs Bureau, which will remain the initial informal complaint intake point, and will coordinate with other bureaus and offices, as appropriate, to facilitate review of inquiries and complaints regarding broadband services.
3. Complaint Processes and Forms of Dispute Resolutiona. Complaint Filing Procedures257. In the 2014 Open Internet NPRM, we sought comment on how open Internet complaints should be received, processed, and enforced. We asked if there were ways to improve access to our existing informal and formal complaint processes, especially for consumers, small businesses, and other entities with limited resources and knowledge of how our complaint processes work. We also asked whether the current enforcement and dispute resolution tools at the Commission's disposal are sufficient for resolving violations of open Internet rules.
258. Informal Complaints. First, we will implement processes to make it easier to lodge informal open Internet complaints, including a new, more intuitive online complaint interface. The Commission recently launched a new Consumer Help Center, which provides a user-friendly, streamlined means to access educational materials on consumer issues and to file complaints. Consumers who seek to file an open Internet complaint should visit the Consumer Help Center portal and click the Internet icon for the materials or the online intake system for complaints. The complaint intake system is designed to guide the consumer efficiently through the questions that need to be answered in order to file a complaint. The Consumer Help Center will make available aggregate data about complaints received, including those pertaining to open Internet issues. Some data is currently available, with additional and more granular data to be provided over time. We believe these efforts will improve access to the Commission's open Internet complaint processes.
259. Formal Complaints. With respect to formal complaints, we amend the Commission's Part 8 open Internet rules to require electronic filing of all pleadings in open Internet formal complaint proceedings. Currently, parties to such proceedings must file hard copies of pleadings with the Office of the Secretary. This process is time-consuming for the parties and makes it difficult for the public to track case developments. Although members of the public may obtain copies of the pleadings from the Commission's Reference Information Center, there is no way to search for or view pleadings electronically. Today's actions modernize and reform these existing procedures. (The rule changes described in this section do not apply to open Internet informal complaints. Consumers will continue to have the ability to file informal complaints electronically with the Consumer & Governmental Affairs Bureau. The form for filing an informal complaint is available at https://consumercomplaints.fcc.gov/hc/en-us.)
260. In 2011, the Commission released a Report and Order revising part 1 and part 0 of its rules. One aspect of the Part 1 Order was a requirement that docketing and electronic filing begin to be utilized in proceedings involving ''[n]ewly filed section 208 formal common carrier complaints and newly filed section 224 pole attachment complaints before the Enforcement Bureau.'' On November 12, 2014, the Commission released an Order that amended its procedural rules governing formal complaints under section 208 and pole attachment complaints under section 224 to require electronic filing. We established within ECFS a ''Submit a Non-Docketed Filing'' module where all such complaints must be filed because staff must review a complaint for conformance with the Commission's rules before the matter can receive its own unique ECFS proceeding number.
261. We now extend those rule changes to open Internet formal complaints. (We hereby amend the caption for the ECFS docket to ''section 208 and 224 and Open Internet Complaint Inbox, Restricted Proceedings.'' We also amend rule 8.16, which governs confidentiality of proprietary information, to conform to the changes we made regarding confidentiality in the section 208 and section 224 complaint rules. See infraAppendix (detailing revisions to 47 CFR 8.16).) When filing such a complaint, as of the effective date of this Order, the complainant will be required to select ''Open Internet Complaint: Restricted Proceeding'' from the ''Submit a Non-Docketed Filing'' module in ECFS. The filing must include the complaint, as well as all attachments to the complaint. (All electronic filings must be machine-readable, and files containing text must be formatted to allow electronic searching and/or copying (e.g., in Microsoft Word or PDF format). Non-text filings (e.g., Microsoft Excel) must be submitted in native format. Be certain that filings submitted in .pdf or comparable format are not locked or password-protected. If those restrictions are present (e.g., a document is locked), the ECFS system may reject the filing, and a party will need to resubmit its document within the filing deadline. The Commission will consider granting waivers to this electronic filing requirement only in exceptional circumstances.) When using ECFS to initiate new proceedings, a complainant no longer will have to file its complaint with the Office of the Secretary unless the complaint includes confidential information.
262. Enforcement Bureau staff will review new open Internet formal complaints for conformance with procedural rules (including fee payment). As of the effective date of this Order, complainants no longer will submit a hard copy of the complaint with the fee payment as described in rule 1.1106. Instead, complainants must first transmit the complaint filing fee to the designated payment center and then file the complaint electronically using ECFS. (Complainants may transmit the complaint filing fee via check, wire transfer, or electronically using the Commission's Fee Filer System (Fee Filer).)
263. Assuming a complaint satisfies this initial procedural review, Enforcement Bureau staff then will assign an EB file number to the complaint (EB Identification Number), give the complaint its own case-specific ECFS proceeding number, and enter both the EB Identification Number and ECFS proceeding number into ECFS. At that time, Enforcement Bureau staff will post a Notice of Complaint Letter in the case-specific ECFS proceeding and transmit the letter (and the complaint) via email to the defendant. On the other hand, if a filed complaint does not comply with the Commission's procedural rules, Enforcement Bureau staff will serve a rejection letter on the complainant and post the rejection letter and related correspondence in ECFS. Importantly, the rejection letter will not preclude the complainant from curing the procedural infirmities and refiling the complaint.
264. As of the effective date of this Order, all pleadings, attachments, exhibits, and other documents in open Internet formal complaint proceedings must be filed using ECFS, both in cases where the complaint was initially filed in ECFS and in pending cases filed under the old rules. With respect to complaints filed prior to the effective date of this Order, Enforcement Bureau staff will assign an individual ECFS proceeding number to each existing proceeding and notify existing parties by email of this new ECFS number. This ECFS proceeding number will be in addition to the previously-assigned number. The first step in using ECFS is to input the individual case's ECFS proceeding number or EB Identification Number. The new rules allow parties to serve post-complaint submissions on opposing parties via email without following up by regular U.S. mail. Parties must provide hard copies of submissions to staff in the Market Disputes Resolution Division of the Enforcement Bureau upon request.
265. Consistent with existing Commission electronic filing guidelines, any party asserting that materials filed in an open Internet formal complaint proceeding are proprietary must file with the Commission, using ECFS, a public version of the materials with any proprietary information redacted. The party also must file with the Secretary's Office an unredacted hard copy version that contains the proprietary information and clearly marks each page, or portion thereof, using bolded brackets, highlighting, or other distinct markings that identify the sections of the filing for which a proprietary designation is claimed. (Filers must ensure that proprietary information has been properly redacted and thus is not viewable. If a filer inadvertently discloses proprietary information, the Commission will not be responsible for that disclosure.) Each page of the redacted and unredacted versions must be clearly identified as the ''Public Version'' or the ''Confidential Version,'' respectively. Both versions must be served on the same day.
b. Alternative Dispute Resolution266. The Commission sought comment on various modes of alternative dispute resolution for resolving open Internet disputes. Currently, parties with disputes before the Commission are free to voluntarily engage in mediation, which is offered by the Market Disputes Resolution Division (MDRD) at no charge to the parties. This process has worked well and has led to the effective resolution of numerous complaints. We will take steps to improve awareness of this approach. In the 2014 Open Internet NPRM, we asked whether other approaches, such as arbitration, should be considered, in order to ensure access to dispute resolution by smaller edge providers and other entities without resources to engage in the Commission's formal complaint process.
267. We decline to adopt arbitration procedures or to mandate arbitration for parties to open Internet complaint proceedings. Under the rules adopted today, parties are still free to engage in mediation and outside arbitration to settle their open Internet disputes, but alternative dispute resolution will not be required. (As a general matter, the Commission lacks the ability to subdelegate its authority over these disputes to a private entity, like a third-party arbitrator, see U.S. Telecom Ass'n v. FCC, 359 F.3d 554, 566 (D.C. Cir. 2004) (''[W]hile federal agency officials may subdelegate their decision-making authority to subordinates absent evidence of contrary congressional intent, they may not subdelegate to outside entities-private or sovereign-absent affirmative evidence of authority to do so''), and ''may not require any person to consent to arbitration as a condition of entering into a contract or obtaining a benefit.'' As noted in the 2014 Open Internet NPRM, however, mandatory third-party arbitration may be allowed so long as it is subject to de novo review by the Commission.) Commenters generally do not favor arbitration in this context and recommend that the Commission not adopt it as the default method for resolving complaints. Commenters suggest that mandatory arbitration, in particular, may more frequently benefit the party with more resources and more understanding of dispute procedure, and therefore should not be adopted. We agree with these concerns and conclude that adoption of arbitration rules is not necessary or appropriate in this context.
c. Multistakeholder Processes and Technical Advisory Groups268. In the 2014 Open Internet NPRM, the Commission sought comment on whether enforcement of open Internet rules'--including resolution of open Internet disputes'--could be supported by multistakeholder processes that enable the development of independent standards to guide the Commission in compliance determinations. The Commission also asked whether it should incorporate the expertise of technical advisory groups into these determinations.
269. We conclude that incorporating groups with technical expertise into our consideration of formal complaints has the potential to inform the Commission's judgment and improve our understanding of complex and rapidly evolving technical issues. By requiring electronic filing of all pleadings in open Internet formal complaint proceedings, we will enable interested parties to more easily track developments in the proceedings and participate as appropriate. Although formal complaint proceedings are generally restricted for purposes of the Commission's ex parte rules, interested parties may seek permission to file an amicus brief. The Commission ''consider[s] on a case-by-case basis motions by non-parties wishing to submit amicus-type filings addressing the legal issues raised in [a] proceeding,'' and grants such requests when warranted. (If a party to the proceeding is a member of or is otherwise represented by an entity that requests leave to file an amicus brief, the entity must disclose that affiliation in its request.) Thus, for example, the Commission granted a motion for leave to file an amicus brief in a section 224 pole attachment complaint proceeding ''in light of the broad policy issues at stake.
270. To further advance the values underlying multistakeholder processes'--inclusivity, transparency, and expertise'--we also amend our Part 8 formal complaint rules by delegating authority to the Enforcement Bureau, in its discretion, to request a written opinion from an outside technical organization. As reviewing courts have established, ''[a] federal agency may turn to an outside entity for advice and policy recommendations, provided the agency makes the final decisions itself.''
271. In this instance, given the potential complexity of the issues in open Internet formal complaint proceedings, it may be particularly useful to obtain objective advice from industry standard-setting bodies or other similar organizations. Providing Commission staff with this flexibility also will enable more informed determinations of technical Internet issues that reflect current industry standards and permit staff to keep pace with rapidly changing technology. (Whenever possible, the Enforcement Bureau should request advisory opinions from expert organizations whose members do not include any of the parties to the proceeding. If no such organization exists, the Enforcement Bureau may refer issues to an expert organization with instructions that representatives of the parties to the complaint proceeding may not participate in the organization's consideration of the issues referred or the drafting of its advisory opinion.) Expert organizations will not be required to respond to requests from the Enforcement Bureau for opinions; however, any organization that elects to do so must provide the opinion within 30 days of the request'--unless otherwise specified by the staff'--in order to facilitate timely dispute resolution. We find that this approach will allow for the inclusivity the multistakeholder process offers, while also providing the predictability and legal certainty of the Commission's formal dispute resolution process.
272. For informal complaints and investigations, the Enforcement Bureau's efforts will continue to be informed by resolutions of formal complaints, and will also continue to be informed by the standards developed by existing multistakeholder, industry, and consumer groups. The Enforcement Bureau will also work with interested parties on an informal basis to identify ways to promote compliance with the open Internet rules.
F. Legal Authority273. We ground the open Internet rules we adopt today in multiple sources of legal authority'--section 706, Title II, and Title III of the Communications Act. We marshal all of these sources of authority toward a common statutorily-supported goal: To protect and promote Internet openness as platform for competition, free expression and innovation; a driver of economic growth; and an engine of the virtuous cycle of broadband deployment.
274. We therefore invoke multiple, complementary sources of legal authority. As a number of parties point out, our authority under section 706 is not mutually exclusive with our authority under Titles II and III of the Act. Rather, we read our statute to provide several, alternative sources of authority that work in concert toward common ends. As described below, under section 706, the Commission has the authority to adopt these open Internet rules to encourage and accelerate the deployment of broadband to all Americans. In the Declaratory Ruling and Order below, we find, based on the current factual record, that BIAS is a telecommunications service subject to Title II and exercise our forbearance authority to establish a ''light-touch'' regulatory regime, which includes the application of sections 201 and 202. This finding both removes the common carrier limitation from the exercise of our affirmative section 706 authority and also allows us to exercise authority directly under sections 201 and 202 of the Communications Act in adopting today's rules. Finally, these rules are also supported by our Title III authority to protect the public interest through spectrum licensing. In this section, we discuss the basis and scope of each of these sources of authority and then explain their application to the open Internet rules we adopt today.
1. Section 706 Provides Affirmative Legal Authority for Our Open Internet Rules275. Section 706 affords the Commission affirmative legal authority to adopt all of today's open Internet rules. Section 706(a) directs the Commission to take actions that ''shall encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans.'' To do so, the Commission may utilize ''in a manner consistent with the public interest, convenience, and necessity, price cap regulation, regulatory forbearance, measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment.'' Section 706(b), in turn, directs that the Commission ''shall take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market,'' if it finds after inquiry that advanced telecommunications capability is not being deployed to all Americans in a reasonable and timely fashion. ''Advanced telecommunications capability'' is defined as ''high-speed, switched, broadband telecommunications capability that enables users to originate and receive high-quality voice, data, graphics, and video telecommunications using any technology.'' Sections 706(a) and (b) each provide an express, affirmative grant of authority to the Commission and the rules we adopt today fall well within their scope.
276. Section 706(a) and (b) Are Express Grants of Authority. In Verizon, the D.C. Circuit squarely upheld as reasonable the Commission's reading of section 706(a) as an affirmative grant of authority. (Verizon, 740 F.3d at 637 (''The question, then, is this: Does the Commission's current understanding of section 706(a) as a grant of regulatory authority represent a reasonable interpretation of an ambiguous statute? We believe it does.'') A few commenters argue that the court incorrectly concluded that section 706(a) and (b) are express grants of authority. For the reasons discussed in the text, by the Commission in the 2010 Open Internet Order, and the court in Verizon and In re FCC, we disagree.) Finding that provision ambiguous, the court upheld the Commission's interpretation as consistent with the statutory text, (As the Verizon court explained, for example, ''section 706(a)'s reference to state commissions does not foreclose such a reading'' of section 706(a) as an express grant of authority. Id. at 638. Nor, as one of the dissents suggests, (see Pai Dissent at 55), is the statute's reference to ''[s]tate commission'' rendered meaningless by the Commission's reaffirmation that BIAS is an interstate service for regulatory purposes. The Commission's interpretation does not preclude all state commission action in this area, just that which is inconsistent with the federal regulatory regime we adopt today.) legislative history, and the Commission's lengthy history of regulating Internet access.
277. Separately addressing section 706(b), the D.C. Circuit held, citing similar reasons, that the ''Commission has reasonably interpreted section 706(b) to empower it to take steps to accelerate broadband deployment if and when it determines that such deployment is not ''reasonable and timely.'' The 10th Circuit, in upholding the Commission's reform of our universal service and inter-carrier compensation regulatory regime, likewise concluded that the Commission reasonably construed section 706(b) as an additional source of authority for those regulations.
278. In January, the Commission adopted the 2015 Broadband Progress Report, which determined that advanced telecommunications capability is not being deployed in a reasonable and timely manner to all Americans. That determination triggered our authority under section 706(b) to take immediate action, including the adoption of today's open Internet rules, to accelerate broadband deployment to all Americans.
279. We interpret sections 706(a) and 706(b) as independent, complementary sources of affirmative Commission authority for today's rules. Our interpretation of section 706(a) as a grant of express authority is in no way dependent upon our findings in the section 706(b) inquiry. Thus, even if the Commission's inquiry were to have resulted in a positive conclusion such that our section 706(b) authority were not triggered this would not eliminate the Commission's authority to take actions to encourage broadband deployment under section 706(a). (The Commission takes such measures precisely to achieve section 706(b)'s goal of accelerating deployment. That they may succeed in achieving that goal so as to contribute to a positive section 706(b) finding does not subsequently render them unnecessary or unauthorized without any further Commission process. Even if that were not the case, independent section 706(a) authority would remain. We mention, however, two legal requirements that appear relevant. First, section 408 of the Act mandates that ''all'' FCC orders (other than orders for the payment of money) ''shall continue in force for the period of time specified in the Order or until the Commission or a court of competent jurisdiction issues a superseding Order.'' 47 U.S.C. 408. Second, the Commission has a ''continuing obligation to practice reasoned decisionmaking'' that includes revisiting prior decisions to the extent warranted. Aeronautical Radio v. FCC, 928 F.2d 428 (D.C. Cir. 1991). We are aware of no reason why these requirements would not apply in this context.)
280. We reject arguments that we lack rulemaking authority to implement section 706 of the 1996 Act. In Verizon, the D.C. Circuit suggested that section 706 was part of the Communications Act of 1934. Under such a reading, the Commission would have all its standard rulemaking authority under sections 4(i), 201(b) and 303(r) to adopt rules implementing that provision. (47 U.S.C. 154(i) (''The Commission may . . . make such rules and regulations . . . not inconsistent with this chapter, as may be necessary in the execution of its functions.''); 47 U.S.C. 201(b) (''The Commission may prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions of this chapter.''); 47 U.S.C. 303(r) (''Except as otherwise provided in this chapter, the Commission from time to time, as public convenience, interest, or necessity requires, shall . . . [m]ake such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of this chapter''). Even if this were not the case, by its terms our section 4(i) rulemaking authority is not limited just to the adoption of rules pursuant to substantive jurisdiction under the Communications Act, and the Verizon court cited as reasonable the Commission's view that Congress, in placing upon the Commission the obligation to carry out the purposes of section 706, ''necessarily invested the Commission with the statutory authority to carry out those acts.''
281. The Open Internet Rules Fall Well Within the Scope of Our section 706 Authority. In Verizon, the D.C. Circuit agreed with the Commission that while authority under section 706 may be broad, it is not unbounded. Both the Commission and the court have articulated its limits. First, section 706 regulations must be within the scope of the Commission's subject matter jurisdiction over ''interstate and foreign communications by wire and radio.'' (Some have read this to require that regulations under section 706 must be ancillary to existing Commission authority in Title II, III or VI of the Act. We disagree. To be sure, with the Commission's exercise of both section 706 and ancillary authority, regulations must be within the Commission's subject matter jurisdiction. Indeed, this is the first prong of the test for ancillary jurisdiction. American Library Ass'n v. FCC, 406 F.3d 689, 703-04 (D.C. Cir. 2005). But we do not read the Verizon decision as applying the second prong'--which requires that the regulation be sufficiently linked to another provision of the Act'--to our exercise of section 706 authority. Section 706 ''does not limit the Commission to using other regulatory authority already at its disposal, but instead grants it the power necessary to fulfill the statute's mandate.''See Verizon, 740 F.3d at 641 (citing 2010 Open Internet Order, 25 FCC Rcd at 17972, para. 123)) And second, any such regulations must be designed to achieve the purpose of section 706(a)'--to ''encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans.''
282. In Verizon, the court firmly concluded that the Commission's 2010 Open Internet Order regulations fell within the scope of section 706. It explained that the rules ''not only apply directly to broadband providers, the precise entities to which section 706 authority to encourage broadband deployment presumably extends, but also seek to promote the very goal that Congress explicitly sought to promote.'' Further, the court credited ''the Commission's prediction that the Open Internet Order regulations will encourage broadband deployment.'' The same is true of the open Internet rules we adopt today. Our regulations again only apply to last-mile providers of broadband services'--services that are not only within our subject matter jurisdiction, but also expressly within the terms of section 706. (In response to parties expressing concerns that section 706 could be read to impose regulations on edge providers or others in the Internet ecosystem, we emphasize that today's rules apply only to last-mile broadband providers. We reject calls from other commenters to exercise our section 706 authority to adopt open Internet regulations for edge providers. Today's rules are specifically designed to address broadband providers' incentives and ability to erect barriers that harm the virtuous cycle. We see no basis for applying these rules to any other providers.) And, again, each of our rules is designed to remove barriers in order to achieve the express purposes of section 706. We also find that our rules will provide additional benefits by promoting competition in telecommunications markets, for example, by fostering competitive provision of VoIP and video services and informing consumers' choices.
2. Authority for the Open Internet Rules Under Title II with Forbearance283. In light of our Declaratory Ruling below, the rules we adopt today are also supported by our legal authority under Title II to regulate telecommunications services. For the reasons set forth below, we have found that BIAS is a telecommunications service and, for mobile broadband, commercial mobile services or its functional equivalent. While we forbear from applying many of the Title II regulations to this service, we have applied sections 201, 202, and 208 (along with related enforcement authorities). These provisions provide an alternative source of legal authority for today's rules.
284. Section 201(a) places a duty on common carriers to furnish communications services subject to Title II ''upon reasonable request'' and ''establish physical connections with other carriers'' where the Commission finds it to be in the public interest. Section 201(b) provides that ''[a]ll charges, practices, classifications, and regulations for and in connection with such communication service, shall be just and reasonable, and any such charge, practice, classification, or regulation that is unjust or unreasonable is declared to be unlawful.'' It also gives the Commission the authority to ''prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions of this chapter.'' Section 202(a) makes it ''unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communication service, directly or indirectly, by any means or device, or to make or give any undue or unreasonable preference or advantage to any particular person, class of persons, or locality, or to subject any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage.'' As described below, these provisions provide additional independent authority for the rules we adopt today.
3. Title III Provides Additional Authority for Mobile Broadband Services285. With respect to mobile broadband Internet access services, today's open Internet rules are further supported by our authority under Title III of the Act to protect the public interest through spectrum licensing. While this authority is not unbounded, we exercise it here in reliance upon particular Title III delegations of authority.
286. Section 303(b) directs the Commission, consistent with the public interest, to ''[p]rescribe the nature of the service to be rendered by each class of licensed stations and each station within any class.'' Today's conduct regulations do precisely this. They lay down rules about ''the nature of the service to be rendered'' by licensed entities providing mobile broadband Internet access service, making clear that this service may not be offered in ways that harm the virtuous cycle. Today's rules specify the form this service must take for those who seek licenses to offer it. In providing such licensed service, broadband providers must adhere to the rules we adopt today.
287. This authority is bolstered by at least two additional provisions. First, as the D.C. Circuit has explained, section 303(r) supplements the Commission's ability to carry out its mandates via rulemaking. Second, section 316 authorizes the Commission to adopt new conditions on existing licenses if it determines that such action ''will promote the public interest, convenience, and necessity.'' (The Commission also has ample authority to impose conditions to serve the public interest in awarding licenses in the first instance. See47 U.S.C. 309(a); 307(a).) Nor do today's rules work any fundamental change to those licenses. Rather we understand our rules to be largely consistent with the current operation of the Internet and the current practices of mobile broadband service providers.
4. Applying These Legal Authorities to Our Open Internet Rules288. Bright line rules. Applying these statutory sources of authority, we have ample legal bases on which to adopt the three bright-line rules against blocking, throttling, and paid prioritization. To begin, we have found that broadband providers have the incentive and ability to engage in such practices'--which disrupt the unity of interests between end users and edge providers and thus threaten the virtuous cycle of broadband deployment. As the D.C. Circuit found with respect to the 2010 conduct rules, such broadband provider practices fall squarely within our section 706 authority. The court struck down the 2010 conduct rules after finding that the Commission failed to provide a legal justification that would take the rules out of the realm of impermissibly mandating common carriage, but did not find anything impermissible about the need for such rules to protect the virtuous cycle. Given our classification of broadband Internet access service as a telecommunications service, the court's rationale for vacating our 2010 conduct rules no longer applies and, for the reasons discussed above, we have legal justification to support our bright-line rules under section 706.
289. Our bright-line rules are also well grounded in our Title II authority. In Title II contexts, the Commission has made clear that blocking traffic generally is unjust and unreasonable under section 201. The Commission has likewise found it unjust and unreasonable for a carrier to refuse to allow non-harmful devices to attach to the network. And with respect to throttling, Commission precedent has likewise held that ''no carriers . . . may block, choke, reduce or restrict traffic in any way.'' We see no basis for departing from such precedents in the case of broadband Internet access services. As discussed above, the record here demonstrates that blocking and throttling broadband Internet access services harm consumers and edge providers, threaten the virtuous cycle, and deter broadband deployment. Consistent with our prior Title II precedents, we conclude that blocking and throttling of broadband Internet access services is an unjust and unreasonable practice under section 201(b).
290. Some parties have suggested that the Commission cannot adopt a rule banning paid prioritization under Title II. We disagree and conclude that paid prioritization is an unjust and unreasonable practice under section 201(b). The unjust and unreasonable standards in sections 201 and 202 afford the Commission significant discretion to distinguish acceptable behavior from behavior that violates the Act. Indeed, the very terms ''unjust'' and ''unreasonable'' are broad, inviting the Commission to undertake the kind of line-drawing that is necessary to differentiate just and reasonable behavior on the one hand from unjust and unreasonable behavior on the other. (As the D.C. Circuit has stated, for example, ''the generality of these terms . . . opens a rather large area for the free play of agency discretion, limited of course by the familiar `arbitrary' and `capricious' standard in the Administrative Procedure Act.''Bell Atlantic Tel. Co. v. FCC, 79 F.3d 1195, 1202 (D.C. Cir. 1996). Stated differently, because both sections ''set out broad standards of conduct,'' it is up to the ''Commission [to] give[] the standards meaning by defining practices that run afoul of carriers' obligation, either by rulemaking or by case-by-case adjudication.'')
291. Acting within this discretion, the Commission has exercised its authority, both through adjudication and rulemaking, under section 201(b) to ban unjust and unreasonable carrier practices as unlawful under the Act. (The Commission need not proceed through adjudication in announcing a broad ban on a particular practice. Indeed, the text of section 201(b) itself gives the Commission authority to ''prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions of this chapter.'' 47 U.S.C. 201(b).) Although the particular circumstances have varied, in reviewing these precedents, we find that the Commission generally takes this step where necessary to protect competition and consumers against carrier practices for which there was either no cognizable justification for the action or where the public interest in banning the practice outweighed any countervailing policy concerns. Based on the record here, we find that paid prioritization presents just such a case, threatening harms to consumers, competition, innovation, and deployment that outweigh any possible countervailing justification of public interest benefit. Our interpretation and application of section 201(b) in this case to ban paid prioritization is further bolstered by the directive in section 706 to take actions that will further broadband deployment.
292. Several commenters argue that we cannot ban paid prioritization under section 202(a), pointing to Commission precedents allowing carriers to engage in discrimination so long as it is reasonable. As discussed above, however, we adopt this rule pursuant to sections 201(b) and 706, not 202(a). And nothing about section 202(a) prevents us from doing so. We recognize that the Commission has historically interpreted section 202(a) to allow carriers to engage in reasonable discrimination, including by charging some customers more for better, faster, or more service. But those precedents stand for the proposition that such discrimination is permitted, not that it must be allowed in all cases. (To be sure, section 202(a) prohibits ''unreasonable discrimination'' for ''like'' communications services. But this provision does not, on its face, deprive the Commission of the authority to take actions under other provisions of the Act against discrimination that may not constitute ''unreasonable discrimination'' under section 202(a).) None of those cases of discrimination presented the kinds of harms demonstrated in the record here'--harms that form the basis of our decision to ban the practice as unjust and unreasonable under section 201(b), not 202(a). Furthermore, none of those precedents involved practices that the Commission has twice found threaten to create barriers to broadband deployment that should be removed under section 706. In light of our discretion in interpreting and applying sections 201 and 202 and insofar as section 706(a) is ''a `fail-safe' that `ensures' the Commission's ability to promote advanced services,'' we decline to interpret section 202(a) as preventing the Commission from exercising its authority under sections 201(b) and 706 to ban paid prioritization practices that harm Internet openness and deployment. (To the extent our prior precedents suggest otherwise, for the reasons discussed in the text, we disavow such an interpretation as applied to the open Internet context.)
293. With respect to mobile broadband Internet access services, our bright-line rules are also grounded in the Commission's Title III authority to ensure that spectrum licensees are providing service in a manner consistent with the public interest.
294. No-Unreasonable Interference/Disadvantage Standard. As with our bright-line rules, the no-unreasonable interference/disadvantage standard we adopt today is supported by our section 706 authority. Beyond the practices addressed by our bright-line rules, we recognize that broadband providers may implement unknown practices or engage in new types of practices in the future that could threaten harm by unreasonably interfering with the ability of end users and edge providers to use broadband Internet access services to reach one another. Such unreasonable interference creates a barrier that impedes the virtuous cycle, threatening the open nature of the Internet to the detriment of consumers, competition, and deployment. For conduct outside the three bright-line rules, we adopt the no-unreasonable interference/disadvantage standard to ensure that broadband providers do not engage in practices that threaten the open nature of the Internet in other or novel ways. This standard is tailored to the open Internet harms we wish to prevent, including harms to consumers, competition, innovation, and free expression'--all of which could impair the virtuous cycle and thus deter broadband deployment, undermining the goals of section 706.
295. The no-unreasonable interference/disadvantage standard is also supported by section 201 and 202 of the Act, which require broadband providers to engage in practices that are just and reasonable, and not unreasonably discriminatory. The prohibition on no-unreasonable interference/disadvantage represents our interpretation of these 201 and 202 obligations in the open Internet context'--an interpretation that is informed by section 706's goals of promoting broadband deployment. (Given the generality of the terms in sections 201 and 202, the Commission has significant discretion when interpreting how those sections apply to the different services subject to Title II.) In other words, for BIAS, we will evaluate whether a practice is unjust, unreasonable, or unreasonably discriminatory using this no-unreasonable interference/disadvantage standard. We note, however, that this rule'--on its own'--does not constitute common carriage per se. (Not all requirements which apply to common carriers need impose common carriage per se. See Verizon, 740 F.3d at 652 (citing Cellco, 700 F.3d at 547 (''[C]ommon carriage is not all or nothing'--there is a gray area in which although a given regulation might be applied to common carriers, the obligations imposed are not common carriage per se. It is in this realm'--the space between per se common carriage and per se private carriage'--that the Commission's determination that a regulation does or does not confer common carrier status warrants deference.'')); Id. at 653 (citing NARUC v. FCC, 533 F.2d 601, 608 (D.C. Cir. 1976) (NARUC II) (''Since it is clearly possible for a given entity to carry on many types of activities, it is at least logical to conclude that one may be a common carrier with regard to some activities but not others.'')).) The no-unreasonable interference/disadvantage standard, standing alone, contains no obligation to provide broadband service to any consumer or edge provider and would not, in its isolated application, necessarily preclude individualized negotiations so long as they do not otherwise unreasonably interfere with the ability of end users and edge providers to use broadband Internet access services to reach one another. Rather, particular practices or arrangements that are not barred by our rules against blocking, throttling, and paid prioritization will be evaluated based on the facts and circumstances they present using a series of factors specifically designed to protect the virtuous cycle of innovation and deployment. Thus, this is a rule tied to particular harms. Broadband providers, having chosen to provide BIAS, may not do so in a way that harms the virtuous cycle.
296. For mobile broadband providers, the no-unreasonable interference/disadvantage standard finds additional support in the Commission's Title III authority as discussed above. The Commission has authority to ensure that broadband providers, having obtained a spectrum license to provide mobile broadband service, must provide that service in a manner consistent with the public interest. (The Commission has broad authority to prescribe the nature of services to be rendered by licensed stations, consistent with the public interest. 47 U.S.C. 303(b); Cellco Partnership v. FCC, 700 F.3d 534, 542 (D.C. Cir. 2012) (''Although Title III does not `confer an unlimited power,' the Supreme Court has emphasized that it does endow the Commission with `expansive powers' and a `comprehensive mandate to `encourage the larger and more effective use of radio in the public interest.' '') (internal citations omitted) (quoting NBC v. United States, 319 U.S. 190, 216, 219 (1943)).) This standard provides guidance on how the Commission will evaluate particular broadband practices, not otherwise barred by our bright-line rules, to ensure that they are consistent with the public interest.
297. Transparency Rule. The D.C. Circuit severed and upheld the Commission's 2010 transparency rule in Verizon. While the majority did not expressly opine on the legal authority for the Commission's prior transparency rule, we feel confident that like the 2010 transparency rule, the enhanced transparency rule we adopt today falls well within multiple, independent sources of the Commission's authority. Beginning with section 706, the transparency rule ensures that consumers have sufficient information to make informed choices thereby facilitating competition in the local telecommunications market (to the extent competitive choices are available). (To encourage deployment of ''advanced telecommunications capability,'' section 706(a) authorizes the Commission to engage in measures that ''promote competition in the local telecommunications market.'' 47 U.S.C. 1302(a). And section 706(b) references ''promoting competition in the telecommunications market'' as among the immediate actions that Commission shall take to accelerate deployment of ''advanced telecommunications capability'' upon a determination that it is not being reasonably and timely deployed. 47 U.S.C. 1302(b). We interpret these references to the ''telecommunications market'' to include the market for ''advanced telecommunications capability.'' In any event, having classified broadband Internet access services as ''telecommunications services,'' the Commission actions to promote competition among broadband Internet access services clearly promote competition in the ''telecommunications market.'') Furthermore, these disclosures remove potential information barriers by ensuring that edge providers have the necessary information to develop innovative products and services that rely on the broadband networks to reach consumers, a crucial arc of the virtuous cycle of broadband deployment. Our transparency rule is also supported by Title II. The Commission has relied on section 201(b) in related billing contexts to ensure that carriers convey accurate and sufficient information about the services they provide to consumers. We do so here as well. (For the reasons discussed above, we likewise rely on Title III to ensure that spectrum licensees provide mobile broadband Internet access service consistent with the public interest.)
298. Enforcement. We also make clear that we have ample authority to enforce the rules we adopt today. Our rules today carry out the provisions of the Communications Act and are thus are covered by our Title IV and V authorities to investigate and enforce violations of these rules. With specific respect to section 706, as noted above, in Verizon, the D.C. Circuit suggested that section 706 was part of the Communications Act of 1934. Under such a reading, rules adopted pursuant to section 706 fall within our Title IV and V authorities. But even if this were not the case, we believe it reasonable to interpret section 706 itself as a grant of authority to investigate and enforce our rules. (Moreover, as discussed above, to the extent that section 706 was not viewed as part of the Communications Act, we have authority under section 4(i) of the Communications Act to adopt rules implementing section 706. Thus, even then the Commission's rules, insofar as they are based on our substantive jurisdiction under section 706, nonetheless would be issued under the Communications Act.) Our enforcement authority was not explicitly discussed in either the 2010 Open Internet Order or the Verizon case. As noted above, the court did cite as reasonable, however, the Commission's view that Congress, in placing upon the Commission the obligation to carry out the purposes of section 706, ''necessarily invested the Commission with the statutory authority to carry out those acts.'' We believe it likewise reasonable to conclude that, having provided the Commission with affirmative legal authority to take regulatory measures to further section 706's goals, Congress invested the Commission with the authority to enforce those measures as needed to ensure those goals are achieved. Indeed, some have suggested that the Commission could take enforcement action pursuant to section 706 itself, without adopting rules.
G. Other Laws and Considerations299. In the 2014 Open Internet NPRM, the Commission tentatively concluded that it should retain provisions which make clear that the open Internet rules do not alter broadband providers' rights or obligations with respect to other laws, safety and security considerations, or the ability of broadband providers to make reasonable efforts to address transfers of unlawful content and unlawful transfers of content. We affirm this tentative conclusion and reiterate today that our rules are not intended to expand or contract broadband providers' rights or obligations with respect to other laws or safety and security considerations'--including the needs of emergency communications and law enforcement, public safety, and national security authorities. Similarly, open Internet rules protect only lawful content, and are not intended to inhibit efforts by broadband providers to address unlawful transfers of content or transfers of unlawful content.
1. Emergency Communications and Safety and Security Authorities300. In the 2010 Open Internet Order we adopted a rule that acknowledges the ability of broadband providers to serve the needs of law enforcement and the needs of emergency communications and public safety, national, and homeland security authorities. This rule remains in effect today. To make clear that open Internet protections coexist with other legal frameworks governing the needs of safety and security authorities, we retain this rule, which reads as follows:
301. In retaining this rule, we reiterate that the purpose of the safety and security provision is first to ensure that open Internet rules do not restrict broadband providers in addressing the needs of law enforcement authorities, and second to ensure that broadband providers do not use the safety and security provision without the imprimatur of a law enforcement authority, as a loophole to the rules. Application of the safety and security rule should be tied to invocation by relevant authorities rather than to a broadband provider's independent notion of the needs of law enforcement.
302. The record is generally supportive of our proposal to reiterate that open Internet rules do not supersede any obligation a broadband provider may have'--or limit its ability'--to address the needs of emergency communications or law enforcement, public safety, or homeland or national security authorities (together, ''safety and security authorities''). Broadband providers have obligations under statutes such as the Communications Assistance for Law Enforcement Act, the Foreign Intelligence Surveillance Act, and the Electronic Communications Privacy Act that could in some circumstances intersect with open Internet protections. Likewise, in connection with an emergency, there may be federal, state, tribal, and local public safety entities, homeland security personnel, and other authorities that need guaranteed or prioritized access to the Internet in order to coordinate disaster relief and other emergency response efforts, or for other emergency communications. Most commenters recognize the benefits of clarifying that these obligations are not inconsistent with open Internet rules.
303. Some commenters have proposed revisions to the existing rule which would expand its application to public utilities and other critical infrastructure operators. Because we make sufficient accommodation for these concerns elsewhere, we choose not to modify this provision to include critical infrastructure.
2. Transfers of Unlawful Content and Unlawful Transfers of Content304. In the NPRM, we tentatively concluded that we should retain the definition of reasonable network management we previously adopted, which does not include preventing transfer of unlawful content or the unlawful transfer of content as a reasonable practice. We affirm this tentative conclusion and re-state that open Internet rules do not prohibit broadband providers from making reasonable efforts to address the transfer of unlawful content or unlawful transfers of content to ensure that open Internet rules are not used as a shield to enable unlawful activity or to deter prompt action against such activity. For example, the no-blocking rule should not be invoked to protect copyright infringement, which has adverse consequences for the economy, nor should it protect child pornography. We reiterate that our rules do not alter the copyright laws and are not intended to prohibit or discourage voluntary practices undertaken to address or mitigate the occurrence of copyright infringement. After consideration of the record, we retain this rule, which is applicable to both fixed and mobile broadband providers engaged in broadband Internet access service and reads as follows:
305. Some commenters contend that this rule promotes the widespread use of intrusive packet inspection technologies by broadband providers to filter objectionable content and that such monitoring poses a threat to customers' privacy rights. Certainly, many broadband providers have the technical tools to conduct deep packet inspection of unencrypted traffic on their networks, and consumer privacy is a paramount concern in the Internet age. Nevertheless, we believe that broadband monitoring concerns are adequately addressed by the rules we adopt today, so we decline to alter this provision. This rule is limited to protecting ''reasonable efforts . . . to address copyright infringement or other unlawful activity.'' We retain the discretion to evaluate the reasonableness of broadband providers' practices under this rule on a case-by-case basis. Consumers also have many tools at their disposal to protect their privacy against deep packet inspection'--including SSL encryption, virtual private networks, and routing methods like TOR. Further, the complaint processes we adopt today add to these technical methods and advance consumer interests in this area.
IV. Declaratory Ruling: Classification of Broadband Internet Access Services Back to Top306. The Verizon court upheld the Commission's use of section 706 as a substantive source of legal authority to adopt open Internet protections. But it held that, ''[g]iven the Commission's still-binding decision to classify broadband providers . . . as providers of `information services,' '' open Internet protections that regulated broadband providers as common carriers would violate the Act. Rejecting the Commission's argument that broadband providers only served retail consumers, the Verizon court went on to explain that ''broadband providers furnish a service to edge providers, thus undoubtedly functioning as edge providers' `carriers,' '' and held that the 2010 no-blocking and no-unreasonable discrimination rules impermissibly ''obligated [broadband providers] to act as common carriers.''
307. The Verizon decision thus made clear that section 706 affords the Commission with substantive authority and that open Internet protections are within the scope of that authority. And this Order relies on section 706 for the open Internet rules. But, in light of Verizon, absent a classification of broadband providers as providing a ''telecommunications service,'' the Commission may only rely on section 706 to put in place open Internet protections that steer clear of what the court described as common carriage per se regulation.
308. Taking the Verizon decision's implicit invitation, we revisit the Commission's classification of the retail broadband Internet access service as an information service (The Commission has previously classified cable modem Internet access service, wireline broadband Internet access service, and Broadband over Power Line (BPL)-enabled Internet access service as information services. The Commission has referred to these services as ''wired'' broadband Internet access services. The Commission has also previously classified ''wireless'' broadband Internet access, which it defined as a service that ''uses spectrum, wireless facilities and wireless technologies to provide subscribers with high-speed (broadband) Internet access capabilities, . . . whether offered using mobile, portable, or fixed technologies,'' as information services) and clarify that this service encompasses the so-called ''edge service.'' Based on the updated record, we conclude that retail broadband Internet access service is best understood today as an offering of a ''telecommunications service.'' (As discussed in greater detail below, our classification decision arises from our reconsideration of past interpretations and applications of the Act. We thus conclude that the classification decisions in this Order appropriately apply only on a prospective basis. See, e.g., Verizon v. FCC, 269 F.3d 1098 (D.C. Cir. 2001) (''In a case in which there is a substitution of new law for old law that was reasonably clear, a decision to deny retroactive effect is uncontroversial.'') (internal quotations omitted).)
309. Below we discuss the history of the classification of broadband Internet access service, describe our rationale for revisiting that classification, and provide a detailed explanation of our reclassification of broadband Internet access service.
A. History of Broadband Internet Classification310. Congress created the Commission ''[f]or the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all people of the United States . . . a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges, for the purpose of the national defense, [and] for the purpose of promoting safety of life and property through the use of wire and radio communication.'' section 2 of the Communications Act grants the Commission jurisdiction over ''all interstate and foreign communication by wire or radio.'' As the Supreme Court explained in the radio context, Congress charged the Commission with ''regulating a field of enterprise the dominant characteristic of which was the rapid pace of its unfolding'' and therefore intended to give the Commission sufficiently ''broad'' authority to address new issues that arise with respect to ''fluid and dynamic'' communications technologies. (National Broadcasting Co., Inc. v. United States, 319 U.S. 190, 219 (1943). The Court added that ''[i]n the context of the developing problems to which it was directed, the Act gave the Commission . . . expansive powers . . . [and] a comprehensive mandate.'') No one disputes that Internet access services are within the Commission's subject-matter jurisdiction and historically have been supervised by the Commission.
311. The Computer Inquiries. In 1966, the Commission initiated its Computer Inquiries''to ascertain whether the services and facilities offered by common carriers are compatible with the present and anticipated communications requirements of computer users.'' In the decision known as Computer I, the Commission required ''maximum separation'' between large carriers that offered data transmission services subject to common carrier requirements and their affiliates that sold data processing services. Refining this approach, in Computer II and Computer III the Commission required telephone companies that provided ''enhanced services'' over their own transmission facilities to separate out and offer on a common carrier basis the transmission component underlying their enhanced services.
312. Commenters disagree about the significance of the Computer Inquiries. We believe the Computer Inquiries are relevant in at least two important respects. First, in Computer II the Commission distinguished ''basic'' from ''enhanced'' services, a distinction that Congress embraced when it adopted the Telecommunications Act of 1996. Basic services offered on a common carrier basis were subject to Title II; enhanced services were not. When Congress enacted the definitions of ''telecommunications service'' and ''information service'' in the Telecommunications Act of 1996, it substantially incorporated the ''basic'' and ''enhanced'' service classifications. Because the statutory definitions substantially incorporated the Commission's terminology under the Computer Inquiries, Commission decisions regarding the distinction between basic and enhanced services'--in particular, decisions regarding features that are ''adjunct to basic'' services'--are relevant in this proceeding. (The Commission's definition of ''adjunct to basic'' services has been instrumental in determining which functions fall within the ''telecommunications systems management'' exception to the ''information service'' definition.)
313. Second, the Computer Inquiries disprove the claim that the Commission has never before mandatorily applied Title II to the transmission component of Internet access service. (As discussed below, a large number of rural local exchange carriers (LECs) have also chosen to offer broadband transmission service as a telecommunications service subject to the provisions of Title II.) From 1980 to 2005, facilities-based telephone companies were obligated to offer the transmission component of their enhanced service offerings'--including broadband Internet access service offered via digital subscriber line (DSL)'--to unaffiliated enhanced service providers on nondiscriminatory terms and conditions pursuant to tariffs or contracts governed by Title II. There is no disputing that until 2005, Title II applied to the transmission component of DSL service.
314. Prior Classification Decisions. Several commenters, as well as the dissenting statements, claim that an unbroken line of Commission and court precedent, dating back to the Stevens Report in 1998, supports the classification of Internet access service as an information service, and that this classification is effectively etched in stone. These commenters ignore not only the Supreme Court but our precedent demonstrating that the relevant statutory definitions are ambiguous, and that classifying broadband Internet access service as a telecommunications service is a permissible interpretation of the Act. Indeed, several of the most vocal opponents of reclassification previously argued that the Commission not only may, but should, classify the transmission component of broadband Internet access service as a telecommunications service. (Contemporaneously, Verizon and the United States Telecom Association argued in the Gulf Power litigation before the Supreme Court that cable modem service includes a telecommunications service.)
315. To begin with, these commenters misconstrue the scope of the Stevens Report, which was a report to Congress concerning the implementation of universal service mandates, and not a binding Commission Order classifying Internet access services. Moreover, when the Commission issued that report, in 1998, broadband Internet access service was at ''an early stage of deployment to residential customers'' and constituted a tiny fraction of all Internet connections. Virtually all households with Internet connections used traditional telephone service to dial-up their Internet Service Provider (ISP), which was typically a separate entity from their telephone company. In the Stevens Report, the Commission stated that Internet access service as it was then typically being provided was an ''information service.'' The Stevens Report reserved judgment on whether entities that provided Internet access over their own network facilities were offering a separate telecommunications service. The Commission further noted that ''the question may not always be straightforward whether, on the one hand, an entity is providing a single information service with communications and computing components, or, on the other hand, is providing two distinct services, one of which is a telecommunications service.'' A few months after sending the Stevens Report to Congress, the Commission concluded that ''[a]n end-user may utilize a telecommunications service together with an information service, as in the case of Internet access.'' In a follow-up order, the Commission affirmed its conclusion that ''xDSL-based advanced services constitute telecommunications services as defined by section 3(46) of the Act.'' (The definition of telecommunications service is now in section 3(53) of the Act, 47 U.S.C. 153(53). The Advanced Services Remand Order was vacated in part by the D.C. Circuit in WorldCom v. FCC, 246 F.3d 690 (D.C. Cir. 2001). Specifically, the D.C. Circuit vacated the remand of the Commission's classification of DSL-based advanced services as ''telephone exchange service'' or ''exchange access.'' ''Telephone exchange service'' and ''exchange access'' are relevant in determining whether a provider is a ''local exchange carrier.'' It has no bearing on the classification of a particular service offering as a telecommunications or information service under the Act. As such, the further history of the Advanced Services Remand Order is inapposite to the Commission's discussion of telecommunications and information services in that Order.)
316. The courts addressed the statutory classification of broadband Internet access service in June 2000, when the United States Court of Appeals for the Ninth Circuit held in AT&T Corp. v. City of Portland that cable modem service is a telecommunications service to the extent that the cable operator ''provides its subscribers Internet transmission over its cable broadband facility,'' and an information service to the extent the operator acts as a ''conventional'' ISP. The Ninth Circuit's decision thus put cable companies' broadband transmission service on a regulatory par with DSL transmission service. (In 2001, SBC Communications and BellSouth acknowledged the significance of the Computer Inquiries, the Advanced Services Order, and the Ninth Circuit's decision in City of Portland:''The Commission currently views the DSL-enabled transmission path underlying incumbent LEC broadband Internet services as a `telecommunications service' under the Act. As the Ninth Circuit recognized, the exact same logic applies to cable broadband: `to the extent that [a cable ISP] provides its subscribers Internet transmission over its cable broadband facility, it is providing a telecommunications service as defined in the Communications Act.' '')
317. Three months later, the Commission issued the Cable Modem Notice of Inquiry, which sought comment on whether cable modem service should be treated as a telecommunications service under Title II or an information service subject to Title I. In response, the Bell Operating Companies (BOCs) unanimously argued that the Commission lawfully could determine that cable modem service includes a telecommunications service. Verizon and Qwest argued that the transmission component of cable modem service is a telecommunications service. SBC Communications and BellSouth (both now part of AT&T) argued that the Commission should classify cable modem service as an integrated information service subject to Title I, but acknowledged that the Commission could lawfully find that cable modem service includes both a telecommunications service and an information service. Verizon, SBC, and BellSouth also agreed that the Commission could adopt a ''middle ground'' legal framework by finding that cable modem service is, in part, a telecommunications service, but grant relief from pricing and tariffing obligations by either declaring all providers of broadband Internet access service to be nondominant or by forbearing from enforcing those obligations. (Cable operators generally argued that the Commission should classify cable modem service as either a cable service or an information service, but not as a telecommunications service.)
318. In March 2002, the Commission exercised its authority to interpret ambiguous language in the Act and addressed the classification of cable modem service in the Cable Modem Declaratory Ruling. The Commission stated that ''[t]he Communications Act does not clearly indicate how cable modem service should be classified or regulated.'' Based on a factual record that had been compiled at that time, the Commission described cable modem service as ''typically includ[ing] many and sometimes all of the functions made available through dial-up Internet access service, including content, email accounts, access to news groups, the ability to create a personal Web page, and the ability to retrieve information from the Internet.'' The Commission noted that cable modem providers often consolidated these functions ''so that subscribers usually do not need to contract separately with another Internet access provider to obtain discrete services or applications.'' (The Commission defined cable modem service as ''a service that uses cable system facilities to provide residential subscribers with high-speed Internet access, as well as many applications or functions that can be used with high-speed Internet access.'')
319. The Commission identified a portion of cable modem service as ''Internet connectivity,'' which it described as establishing a physical connection to the Internet and operating or interconnecting with the Internet backbone, and sometimes including protocol conversion, Internet Protocol (IP) address number assignment, DNS, network security, caching, network monitoring, capacity engineering and management, fault management, and troubleshooting. The Ruling also noted that ''[n]etwork monitoring, capacity engineering and management, fault management, and troubleshooting are Internet access service functions that . . . serve to provide a steady and accurate flow of information between the cable system to which the subscriber is connected and the Internet.'' The Commission distinguished these functions from ''Internet applications provided through cable modem services,'' including ''email, access to online newsgroups, and creating or obtaining and aggregating content,'' ''home pages,'' and ''the ability to create a personal Web page.''
320. The Commission found that cable modem service was ''an offering . . . which combines the transmission of data with computer processing, information provision, and computer interactivity, enabling end users to run a variety of applications.'' The Commission further concluded that, ''as it [was] currently offered,'' cable modem service as a whole met the statutory definition of ''information service'' because its components were best viewed as a ''single, integrated service that enables the subscriber to utilize Internet access service,'' with a telecommunications component that was ''not . . . separable from the data processing capabilities of the service.'' Significantly, the Commission did not address whether DNS or any other features of cable modem service fell within the telecommunications systems management exception to the definition of ''information service'' as there was no reason to do so. The Cable Modem Declaratory Ruling also included a notice of proposed rulemaking seeking comment on, among other things, whether the Commission should require cable operators to give unaffiliated broadband Internet access service providers access to cable broadband networks.
321. In October 2003, the United States Court of Appeals for the Ninth Circuit vacated the Commission's finding that cable modem service is an integrated information service. The court concluded that it was bound by the prior decision in City of Portland that ''the transmission element of cable broadband service constitutes telecommunications service under the terms of the Communications Act.''
322. In 2005, the Supreme Court reversed the Ninth Circuit's decision and upheld the Cable Modem Declaratory Ruling in Brand X. The Court held that the word ''offering'' in the Communications Act's definitions of ''telecommunications service'' and ''information service'' is ambiguous, and that the Commission's finding that cable modem service is a functionally integrated information service was a permissible, though perhaps not the best, interpretation of the Act.
323. Following Brand X, the Commission issued the Wireline Broadband Classification Order, which applied the ''information services'' classification at issue in the Cable Modem Declaratory Ruling to facilities-based wireline broadband Internet access services as well and eliminated the resulting regulatory asymmetry between cable companies and telephone companies offering wired Internet access service via DSL and other facilities. The Wireline Broadband Classification Order based this decision on a finding that ''providers of wireline broadband Internet access service offer subscribers the ability to run a variety of applications'' that fit the definition of information services, including those that enable access to email and the ability to establish home pages. The Commission therefore concluded that ''[w]ireline broadband Internet access service, like cable modem service, is a functionally integrated, finished service that inextricably intertwines information-processing capabilities with data transmission such that the consumer always uses them as a unitary service.'' The Commission also eliminated the Computer Inquiry requirements for wireline Internet access service. In 2006, the Commission issued the BPL-Enabled Broadband Order, which extended the information service classification to Internet access service provided over power lines.
324. Subsequently, in 2007 the Commission released the Wireless Broadband Classification Order, which determined that wireless broadband Internet access service was likewise an information service under the Communications Act. The Wireless Broadband Classification Order also found that although ''the transmission component of wireless broadband Internet access service is `telecommunications' . . . the offering of the telecommunications transmission component as part of a functionally integrated Internet access service offering is not `telecommunications service' under section 3 of the [Communications] Act.''
325. The Wireless Broadband Classification Order also considered the application of section 332 of Title III to wireless broadband Internet access service and concluded that ''mobile wireless broadband Internet access service does not meet the definition of `commercial mobile service' within the meaning of section 332 of the Act as implemented by the Commission's CMRS rules because such broadband service is not an `interconnected service,' as defined in the Act and the Commission's rules.''
326. In 2010, the D.C. Circuit rejected the Commission's attempt to enforce open Internet principles based on the Commission's Title I ancillary authority in Comcast v. FCC. Following Comcast, the Commission issued a Notice of Inquiry (Broadband Classification NOI) that sought comment on the appropriate approach to broadband policy in light of the D.C. Circuit's decision. Shortly thereafter, the Commission released the 2010 Open Internet Order. The 2010 Order was based in part on a revised understanding of the Commission's Title I authority'--as well as a variety of other statutory provisions including section 706'--and was again challenged before the D.C. Circuit in Verizon v. FCC. Although the Verizon court accepted the Commission's reinterpretation of section 706 as an independent grant of legislative authority over broadband services, the court nonetheless vacated the no-blocking and antidiscrimination provisions of the Order as imposing de facto common carrier status on providers of broadband Internet access service in violation of the Commission's classification of those services as information services. (The Court also found that that authority did not allow the Commission to subject information services or providers of private mobile services to treatment as common carriers.)
327. In response to the Verizon decision, the Commission released a Notice of Proposed Rulemaking (NPRM) seeking public input on the ''best approach to protecting and promoting Internet openness.'' Among other things, the 2014 Open Internet NPRM asked for discussion of the proper legal authority on which to base open Internet rules. The Commission proposed to rely on section 706 of the Telecommunications Act of 1996, but at the same time stated that it would ''seriously consider the use of Title II of the Communications Act as the basis for legal authority.'' The NPRM sought comment on the benefits of both section 706 and Title II, and emphasized its recognition that ''both section 706 and Title II are viable solutions.''
B. Rationale for Revisiting the Commission's Classification of Broadband Internet Access Services328. We now find it appropriate to revisit the classification of broadband Internet access service as an information service. The Commission has steadily and consistently worked to protect the open Internet for the last decade, starting with the adoption of the Internet Policy Statement up through its recent 2014 Open Internet NPRM following the D.C. Circuit's Verizon decision. Although the Verizon court accepted the Commission's interpretation of section 706 as an independent grant of authority over broadband services, it nonetheless vacated the no-blocking and antidiscrimination provisions of the Open Internet Order. As the Verizon decision explained, to the extent that conduct-based rules remove broadband service providers' ability to enter into individualized negotiations with edge providers, they impose per se common carrier status on broadband Internet access service providers, and therefore conflict with the Commission's prior designation of broadband Internet access services as information services. Thus, absent a finding that broadband providers were providing a ''telecommunications service,'' the D.C. Circuit's Verizon decision defined the bounds of the Commission's authority to adopt open Internet protections to those that do not amount to common carriage.
329. The Brand X Court emphasized that the Commission has an obligation to consider the wisdom of its classification decision on a continuing basis. An agency's evaluation of its prior determinations naturally includes consideration of the law affecting its ability to carry out statutory policy objectives. As discussed above, the record in the Open Internet proceeding demonstrates that broadband providers continue to have the incentives and ability to engage in practices that pose a threat to Internet openness, and as such, rules to protect the open nature of the Internet remain necessary. To protect the open Internet, and to end legal uncertainty, we must use multiple sources of legal authority to protect and promote Internet openness, to ensure that the Internet continues to grow as a platform for competition, free expression, and innovation; a driver of economic growth; and an engine of the virtuous cycle of broadband deployment, innovation, and consumer demand. Thus, we now find it appropriate to examine how broadband Internet access services are provided today.
330. Changed factual circumstances cause us to revise our earlier classification of broadband Internet access service based on the voluminous record developed in response to the 2014 Open Internet NPRM. In the 2002 Cable Modem Declaratory Ruling, the Commission observed that ''the cable modem service business is still nascent, and the shape of broadband deployment is not yet clear. Business relationships among cable operators and their service offerings are evolving.'' However, despite the rapidly changing market for broadband Internet access services, the Commission's decisions classifying broadband Internet access service are based largely on a factual record compiled over a decade ago, during this early evolutionary period. The premises underlying that decision have changed. As the record demonstrates and we discuss in more detail below, we are unable to maintain our prior finding that broadband providers are offering a service in which transmission capabilities are ''inextricably intertwined'' with various proprietary applications and services. Rather, it is more reasonable to assert that the ''indispensable function'' of broadband Internet access service is ''the connection link that in turn enables access to the essentially unlimited range of Internet-based services.'' This is evident, as discussed below, from: (1) Consumer conduct, which shows that subscribers today rely heavily on third-party services, such as email and social networking sites, even when such services are included as add-ons in the broadband Internet access provider's service; (2) broadband providers' marketing and pricing strategies, which emphasize speed and reliability of transmission separately from and over the extra features of the service packages they offer; and (3) the technical characteristics of broadband Internet access service. We also note that the predictive judgments on which the Commission relied in the Cable Modem Declaratory Ruling anticipating vibrant intermodal competition for fixed broadband cannot be reconciled with current marketplace realities.
C. Classification of Broadband Internet Access Service331. In this section, we reconsider the Commission's prior decisions that classified wired and wireless broadband Internet access service as information services, and conclude that broadband Internet access service is a telecommunications service subject to our regulatory authority under Title II of the Communications Act regardless of the technological platform over which the service is offered. (A ''telecommunications service'' is ''the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.'' 47 U.S.C. 153(53). ''Telecommunications'' is ''the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received.''Id. 153(50).) We both revise our prior classifications of wired broadband Internet access service and wireless broadband Internet access service, and classify broadband Internet access service provided over other technology platforms. In doing so, we exercise the well-established power of federal agencies to interpret ambiguous provisions in the statutes they administer. The Supreme Court summed up this principle in Brand X:
332. The Court's application of this Chevron test in Brand X makes clear our delegated authority to revisit our prior interpretation of ambiguous statutory terms and reclassify broadband Internet access service as a telecommunications service. The Court upheld the Commission's prior information services classification because ''the statute fails unambiguously to classify the telecommunications component of cable modem service as a distinct offering. This leaves federal telecommunications policy in this technical and complex area to be set by the Commission. . . .'' Where a term in the Act ''admit[s] of two or more reasonable ordinary usages, the Commission's choice of one of them is entitled to deference.'' The Court concluded, given the ''technical, complex, and dynamic'' questions that the Commission resolved in the Cable Modem Declaratory Ruling,''[t]he Commission is in a far better position to address these questions than we are.''
333. Furthermore, reading the Brand X majority, concurring, and dissenting opinions together, it is apparent that most, and perhaps all, of the nine Justices believed that it would have been at least permissible under the Act to have classified the transmission service included with wired Internet access service as a telecommunications service. Justice Thomas, writing for the majority, noted that ''our conclusion that it is reasonable to read the Communications Act to classify cable modem service solely as an `information service' leaves untouched Portland's holding that the Commission's interpretation is not the best reading of the statute.'' Justice Breyer concurred with Justice Thomas, stating that he ''believe[d] that the Federal Communications Commission's decision f[e]ll[ ] within the scope of its statutorily delegated authority,'' although ''perhaps just barely.'' And in dissent, Justice Scalia, joined by Justices Souter and Ginsburg, found that the Commission had adopted ''an implausible reading of the statute'' and that ''the telecommunications component of cable-modem service retains such ample independent identity'' that it could only reasonably be classified as a separate telecommunications service.
334. It is also well settled that we may reconsider, on reasonable grounds, the Commission's earlier application of the ambiguous statutory definitions of ''telecommunications service'' and ''information service.'' Indeed, in Brand X, the Supreme Court, in the specific context of classifying cable modem service, instructed the Commission to reexamine its application of the Communications Act to this service ''on a continuing basis'':
335. More recently, in FCC v. Fox Television Stations, Inc., the Supreme Court emphasized that, although an agency must acknowledge that it is changing course when it adopts a new construction of an ambiguous statutory provision, ''it need not demonstrate to a court's satisfaction that the reasons for the new policy are better than the reasons for the old one. . . .'' Rather, it is sufficient that ''the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates.'' We discuss in detail below why our conclusion that broadband Internet access service is a telecommunications service is well within our authority. Having determined that Congress gave the Commission authority to determine the appropriate classification of broadband Internet access service'--and having provided sufficient justification of changed factual circumstances to warrant a reexamination of the Commission's prior classification'--we find, upon interpreting the relevant statutory terms, that broadband Internet access service, as offered today, includes ''telecommunications,'' and falls within the definition of a ''telecommunications service.''
1. Scope336. As discussed below, we conclude that broadband Internet access service is a telecommunications service. We define ''broadband Internet access service'' as a mass-market (By mass market, we mean services marketed and sold on a standardized basis to residential customers, small businesses, and other end-user customers such as schools and libraries. ''Schools'' would include institutions of higher education to the extent that they purchase these standardized retail services. See Higher Education and Libraries Comments at 11 (noting that institutions of higher education are not ''residential customers'' or ''small businesses'' and uncertainty about whether institutions of higher education (and their libraries) are included in the term ''schools'' because the term is sometimes interpreted as applying only to K through 12 schools). For purposes of this definition, ''mass market'' also includes broadband Internet access service purchased with the support of the E-rate, and Rural Healthcare programs, as well as any broadband Internet access service offered using networks supported by the Connect America Fund (CAF), but does not include enterprise service offerings or special access services, which are typically offered to larger organizations through customized or individually negotiated arrangements.) retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up Internet access service. (As explained above, see supra note, our use of the term ''broadband'' in this Order includes but is not limited to services meeting the threshold for ''advanced telecommunications capability.'') This term also encompasses any service that the Commission finds to be providing a functional equivalent of the service described in the previous sentence. (The Verizon decision upheld the Commission's regulation of broadband Internet access service pursuant to section 706 and the definition of ''broadband Internet access service'' has remained part of the Commission's regulations since adopted in 2010. Certain parties have raised issues in the record regarding the regulatory status of mobile messaging services, e.g., SMS/MMS. We note that the rules we adopt today prohibit broadband providers from, for example, blocking messaging services that are delivered over a broadband Internet access service. We decline to further address here arguments regarding the status of messaging within our regulatory framework, but instead plan to address these issues in the context of the pending proceeding considering a petition to clarify the regulatory status of text messaging services.)
337. The term ''broadband Internet access service'' includes services provided over any technology platform, including but not limited to wire, terrestrial wireless (including fixed and mobile wireless services using licensed or unlicensed spectrum), and satellite. (In classifying wireless broadband Internet access as an information service, the Commission excluded broadband provided via satellite from classification. Thus, our action here expressly classifies the service for the first time. We observe that while our classification includes broadband Internet access services provided using capacity over fixed or mobile satellite or submarine cable landing facilities, our classification of these services as telecommunications services or CMRS does not require changes to the authorizations for satellite earth stations, satellite space stations, or submarine cable landing facilities.) For purposes of our discussion, we divide the various forms of broadband Internet access service into the two categories of ''fixed'' and ''mobile,'' rather than between ''wired'' and ''wireless'' service. With these two categories of services'--fixed and mobile'--we intend to cover the entire universe of Internet access services at issue in the Commission's prior broadband classification decisions as well as all other broadband Internet access services offered over other technology platforms that were not addressed by prior classification orders. We also make clear that our classification finding applies to all providers of broadband Internet access service, as we delineate them here, regardless of whether they lease or own the facilities used to provide the service. (The Commission has consistently determined that resellers of telecommunications services are telecommunications carriers, even if they do not own any facilities. Further, as the Supreme Court observed in Brand X,''the relevant definitions do not distinguish facilities-based and non-facilities-based carriers.'') ''Fixed'' broadband Internet access service refers to a broadband Internet access service that serves end users primarily at fixed endpoints using stationary equipment, such as the modem that connects an end user's home router, computer, or other Internet access device to the network. The term encompasses the delivery of fixed broadband over any medium, including various forms of wired broadband services (e.g., cable, DSL, fiber), fixed wireless broadband services (including fixed services using unlicensed spectrum), and fixed satellite broadband services. ''Mobile'' broadband Internet access service refers to a broadband Internet access service that serves end users primarily using mobile stations. Mobile broadband Internet access includes, among other things, services that use smartphones or mobile-network-enabled tablets as the primary endpoints for connection to the Internet. (We note that section 337(f)(1) of the Act excludes public safety services from the definition of mobile broadband Internet access service. 47 U.S.C. 337(f)(1).) The term also encompasses mobile satellite broadband services.
338. In the Verizon opinion, the D.C. Circuit concluded that, in addition to the retail service provided to consumers, ''broadband providers furnish a service to edge providers, thus undoubtedly functioning as edge providers `carriers.' '' It was because the court concluded that the Commission had treated this distinct service as common carriage, that it ''remand[ed] the case to the Commission for further proceedings consistent with this opinion.'' We conclude now that the failure of the Commission's analysis was a failure to explain that the ''service to edge providers'' is subsumed within the promise made to the retail customer of the BIAS service. For the reasons we review herein, the reclassification of BIAS necessarily resolves the edge-provider question as well. In other words, the Commission agrees that a two-sided market exists and that the beneficiaries of the non-consumer side either are or potentially could be all edge providers. Because our reclassification decision treats BIAS as a Title II service, Title II applies, as well, to the second side of the market, which is always a part of, and subsidiary to, the BIAS service. The Verizon court implicitly followed that analysis when it treated the classification of the retail end user service as controlling with respect to its analysis of the edge service; its conclusion that an edge service could be not be treated as common carriage turned entirely on its understanding that the provision of retail broadband Internet access services had been classified as ''information services.'' The reclassification of BIAS as a Title II service thus addresses the court's conclusion that ''the Commission would violate the Communications Act were it to regulate broadband providers as common carriers.''
339. Many commenters, while holding vastly different views on our reclassification of BIAS, are united in the view we need not reach the regulatory classification of the service that the Verizon court identified as being furnished to the edge. (We thus decline to adopt proposals identifying and classifying a separate service provided to edge providers that were presented in the record, and on which we sought comment, including those by Mozilla, the Center for Democracy and Technology, and Professors Wu and Narechania. We believe that our actions here adequately address the concerns raised by these proposals, consistent with both law and fact.) We agree. Our reclassification of the broadband Internet access service means that we can regulate, consistent with the Communications Act, broadband providers to the extent they are ''engaged'' in providing the broadband Internet access service. As discussed above, a broadband Internet access service provider's representation to its end-user customer that it will transport and deliver traffic to and from all or substantially all Internet endpoints necessarily includes the promise to transmit traffic to and from those Internet end points back to the user. Thus, the so-called ''edge service'' is secondary, and in support of, the promise made to the end user, and broadband provider practices with respect to edge providers'--including terms and conditions for the transfer and delivery of traffic to (and from) the BIAS subscriber'--impact the broadband provider's provision of the Title II broadband Internet access service. (This is not a novel arrangement. Under traditional contract principles, Party A (a broadband provider) can contract with Party B (a consumer) to provide services to Party C (an edge provider). That the service is being provided to Party C does not, in any way, conflict with the legal conclusion that the terms and conditions under which that service is being provided are governed by the agreement'--and here the regulatory framework'-- between Parties A and B. Most content that flows across the broadband provider's ''last-mile'' network to the retail consumer does not involve a direct agreement between Parties B and C but, as the Verizon court observed, an edge provider, like Amazon, could enter into an agreement with a broadband provider, like Comcast.) For example, where an edge provider attempts to purchase favorable treatment for its traffic (such as through zero rating), that treatment would be experienced by the BIAS subscriber (such as through an exemption of the edge-provider's data from a usage limit) and the impact on the BIAS subscriber, if any, would be assessed under Title II. That is, the legal question before the Commission turns on whether the provision of that service to the edge provider would be inconsistent with the provision of the retail service under Title II. That is because the same data is flowing between end user and edge consumer. (This conclusion does not contradict the economic view that a broadband provider is operating in a two-sided market. See, e.g.,supra note. A newspaper looks the same whether viewed by an advertiser or a subscriber, even though their economic relationship with the newspaper publisher is different. Here the operation of the broadband Internet access service is so intertwined with the edge service so as to compel the conclusion that the BIAS reclassification controls any service that is being provided to an edge provider.) In other words, to the extent that it is necessary to examine a separate edge service, that service is simply derivative of BIAS, constitutes the same traffic, and, in any event, fits comfortably within the command that practices provided ''in connection with'' a Title II service that must themselves be just and reasonable.
340. Broadband Internet access service does not include virtual private network (VPN) services, content delivery networks (CDNs), hosting or data storage services, or Internet backbone services. The Commission has historically distinguished these services from ''mass market'' services and, as explained in the 2014 Open Internet NPRM, they ''do not provide the capability to transmit data to and receive data from all or substantially all Internet endpoints.'' (In classifying broadband Internet access service as a telecommunications service today, the Commission does not, and need not, reach the question of whether and how these services are classified under the Communications Act.) We do not disturb that finding here. Finally, we observe that to the extent that coffee shops, bookstores, airlines, private end-user networks such as libraries and universities, and other businesses acquire broadband Internet access service from a broadband provider to enable patrons to access the Internet from their respective establishments, provision of such service by the premise operator would not itself be considered a broadband Internet access service unless it was offered to patrons as a retail mass market service, as we define it here. Likewise, when a user employs, for example, a wireless router or a Wi-Fi hotspot to create a personal Wi-Fi network that is not intentionally offered for the benefit of others, he or she is not offering a broadband Internet access service, under our definition, because the user is not marketing and selling such service to residential customers, small business, and other end-user customers such as schools and libraries.
2. The Market Today: Current Offerings of Broadband Internet Access Service341. We begin our analysis by examining how broadband Internet access service was and currently is offered. In the 2002 Cable Modem Declaratory Ruling, the Commission observed that ''the cable modem service business is still nascent, and the shape of broadband deployment is not yet clear. Business relationships among cable operators and their service offerings are evolving.'' Despite the rapidly changing market for broadband Internet access services, the Commission's decisions classifying broadband Internet access service are based largely on a factual record compiled over a decade ago, during this early evolutionary period. The record in this proceeding leads us to the conclusion that providers today market and offer consumers separate services that are best characterized as (1) a broadband Internet access service that is a telecommunications service; and (2) ''add-on'' applications, content, and services that are generally information services.
342. In the past, the Commission has identified a number of ways to determine what broadband providers ''offer'' consumers. In the Cable Modem Declaratory Ruling, for example, the Commission concluded that ''the classification of cable modem service turns on the nature of the functions that the end user is offered.'' In the Wireline Broadband Classification Order, the Commission noted that ''whether a telecommunications service is being provided turns on what the entity is `offering . . . to the public,' and customers' understanding of that service.'' In the Wireless Broadband Classification Order, the Commission stated that ''[a]s with both cable and wireline Internet access, [the] definition appropriately focuses on the end user's experience, factoring in both the functional characteristics and speed of transmission associated with the service.'' Similarly, in Brand X, both the majority and dissenting opinions examined how consumers perceive and use cable modem service, technical characteristics of the services and how it is provided, and analogies to other services.
a. Broadband Internet Access Services at Time of Classification343. ''Wired'' Broadband Services. The Commission's Cable Modem Declaratory Ruling described cable modem service as ''typically includ[ing] many and sometimes all of the functions made available through dial-up Internet access service, including content, email accounts, access to news groups, the ability to create a personal Web page, and the ability to retrieve information from the Internet, including access to the World Wide Web.'' The Commission also identified functions provided with cable modem service that it called ''Internet connectivity functions.'' (Earlier, in its 2001 AOL/Time Warner merger order describing the emerging high speed Internet access services offered through cable modems, the Commission found that ''Internet access services consist principally of connectivity to the Internet provided to end users.'') These included establishing a physical connection to the Internet and interconnecting with the Internet backbone, protocol conversion, Internet Protocol address number assignment, domain name resolution through DNS, network security, caching, network monitoring, capacity engineering and management, fault management, and troubleshooting. In addition, the Commission noted that ''[n]etwork monitoring, capacity engineering and management, fault management, and troubleshooting are Internet access service functions that . . . . serve to provide a steady and accurate flow of information between the cable system to which the subscriber is connected and the Internet.'' The Ruling noted that ''[c]omplementing the Internet access functions are Internet applications provided through cable modem service. These applications include traditional ISP services such as email, access to online newsgroups, and creating or obtaining and aggregating content. The cable modem service provider will also typically offer subscribers a `first screen' or `home page' and the ability to create a personal Web page.'' The Commission explained that ''[e]-mail, newsgroups, the ability for the user to create a Web page that is accessible by other Internet users, and DNS are applications that are commonly associated with Internet access service,'' and that ''[t]aken together, they constitute an information service.'' In the Wireline Broadband Classification Order, the Commission found that end users subscribing to wireline broadband Internet access service ''expect to receive (and pay for) a finished, functionally integrated service that provides access to the Internet.''
344. The Commission's subsequent wired broadband classification decisions did not describe wired broadband Internet access services with any greater detail.
345. Wireless Broadband Services. In 2007, the Commission described wireless broadband Internet access service as a service ''that uses spectrum, wireless facilities and wireless technologies to provide subscribers with high-speed (broadband) Internet access capabilities.'' The Commission noted that ''many of the mobile telephone carriers that provide mobile wireless broadband service for mobile handsets offer a range of IP-based multimedia content and services'--including ring tones, music, games, video clips and video streaming'--that are specially designed to work with the small screens and limited keypads of mobile handsets. This content is typically sold through a carrier-branded, carrier-controlled portal.''
b. The Growth of Consumer Demand and Market Supply346. The record in this proceeding reveals that, since we collected information to address the classification of cable modem service over a decade ago, the market for both fixed and mobile broadband Internet access service has changed dramatically. Between December 2000 and December 2013, the number of residential Internet connections with speeds over 200 kbps in at least one direction increased from 5.2 million to 87.6 million. In 2000, only 5 percent of American households had a fixed Internet access connection with speeds of over 200 kbps in at least one direction, as compared to approximately 72 percent of American households with this same connection today. Indeed, as of December 2013, 60 percent of households have a fixed Internet connection with minimum speeds of at least 3 Mbps/768 kbps. Moreover, between December 2009 and December 2013, the number of mobile handsets with a residential data plan with a speed of at least 200 kbps in one direction increased from 43.7 million to 159.2 million, a 265 percent increase. (In addition, the mobile residential figures may overstate residential handsets because mobile filers report the number of ''consumer'' handsets that are not billed to a corporate, non-corporate business, government, or institutional customer account, and thus could include handsets for which the subscriber is reimbursed by their employee.) By November 2014, 73.6 percent of the entire U.S. age 13+ population was communicating with smart phones, a figure which has continued to rise rapidly over the past several years. Cisco forecasts that by 2019, North America will have nearly 90 percent of its installed base converted to smart devices and connections, and smart traffic will grow to 97 percent of the total global mobile traffic. In 2013, the United States and Canada were home to almost 260 million mobile subscriptions for smartphones, mobile PCs, tablets, and mobile routers. In 2014, that number was expected to increase by 20 percent, to 300 million subscriptions; by 2020, to 450 million, or a population penetration rate of almost 124 percent. In addition, the explosion in the deployment of Wi-Fi technology in the past few years has resulted in consumers increasingly using that technology to access third party content, applications, and services on the Internet, in connection with either a fixed broadband service or a mobile broadband service.
347. This widespread penetration of broadband Internet access service has led to the development of third-party services and devices and has increased the modular way consumers have come to use them. As more American households have gained access to broadband Internet access service, the market for Internet-based services provided by parties other than broadband Internet access providers has flourished. Consumers' appetite for third-party services has also received a boost from the shift from dial-up to broadband, as a high-speed connection makes the Internet much more useful to consumers. (For example, early studies showed that broadband users are far more likely than dial-up users to go online to seek out news, look for travel information, share computer files with others, create content, and download games and videos.) The impact of broadband on consumers' demand for third-party services is evident in the explosive growth of online content and application providers. In early 2003, a year after the Cable Modem Declaratory Ruling, there were approximately 36 million Web sites. Today there are an estimated 900 million. When the Commission assessed the cable modem service market in the Cable Modem Declaratory Ruling, the service at issue was offered with various online applications, including email, newsgroups, and the ability to create a Web page. The Commission observed that subscribers to cable modem services ''usually d[id] not need to contract separately'' for ''discrete services or applications'' such as email. Today, broadband service providers still provide various Internet applications, including email, online storage, and customized homepages, in addition to newer services such as music streaming and instant messaging. But consumers are very likely to use their high-speed Internet connections to take advantage of competing services offered by third parties.
348. For example, companies such as Google and Yahoo! offer popular alternatives to the email services provided to subscribers as part of broadband Internet access service packages. According to Experian, Gmail and Yahoo! Mail were among the ten Internet sites most frequently visited during the week of January 17, 2015, with approximately 400 million and 350 million visits respectively. Some parties even advise consumers specifically not to use a broadband provider-based email address; because a consumer cannot take that email address with them if he or she switches providers, some assert that using a broadband provider-provided email address results in a disincentive to switch to a competitive provider due to the attendant difficulties in changing an email address. Third-party alternatives are also widely available for other services that may be provided along with broadband Internet access service. (DNS, caching, and other services that enable the efficient transmission of data over broadband connections are considered in section IV.C.3. below.) For example, firms such as Apple, Dropbox, and Carbonite provide ''cloud-based'' storage; services like Go Daddy provide Web site hosting; users rely on companies such as WordPress and Tumblr to provide blog hosting; and firms such as Netvibes and Yahoo! provide personalized homepages. GigaNews and Google provide access to newsgroups, while many broadband providers have themselves ceased offering this service entirely.
349. More generally, both fixed and mobile consumers today largely use their broadband Internet access connections to access content and services that are unaffiliated with their broadband Internet access service provider. In this regard, perhaps the most significant trend is the growing popularity of third-party video streaming services. By one estimate, Netflix and YouTube alone account for 50 percent of peak Internet download traffic in North America. Other sites among the most popular in the United States include the search engines Google and Yahoo!; social networking sites Facebook and LinkedIn; e-commerce sites Amazon, eBay and Craigslist; the user-generated reference site Wikipedia; a diverse array of user-generated media sites including Reddit, Twitter, and Pinterest; and news sources such as nytimes.com and CNN.com. Overall, broadband providers themselves operate very few of the Web sites that broadband Internet access services are most commonly used to access.
350. Thus, as a practical matter, broadband Internet access service is useful to consumers today primarily as a conduit for reaching modular content, applications, and services that are provided by unaffiliated third parties. As the Center for Democracy & Technology puts it, ''[t]he service that broadband providers offer to the public is widely understood today, by both the providers and their customers, as the ability to connect to anywhere on the Internet'--to any of the millions of Internet endpoints'--for whatever purposes the user may choose.'' (CDT contrasts the current state of affairs with an earlier time ''when Internet access service providers sought to differentiate themselves by offering `walled gardens' of proprietary content and users looked to their access provider to serve as a kind of curator of the chaos of the Internet.'') Indeed, the ability to transmit data to and from Internet endpoints has become the ''one indispensable function'' that broadband Internet access service uniquely provides.
c. Marketing351. That broadband Internet access services today are primarily offerings of Internet connectivity and transmission capability is further evident by how these services are marketed and priced. Commenters cite numerous examples of advertisements that emphasize transmission speed as the predominant feature that characterizes broadband Internet access service offerings. For example, Comcast advertises that its XFINITY Internet service offers ''the consistently fast speeds you need, even during peak hours,'' and RCN markets its high-speed Internet service as providing the ability ''to upload and download in a flash.'' Verizon claims that ''[w]hatever your life demands, there's a Verizon FiOS plan with the perfect upload/download speed for you,'' while the name of Verizon's DSL-based service is simply ''High Speed Internet.'' Furthermore, fixed broadband providers use transmission speeds to classify tiers of service offerings and to distinguish their offerings from those of competitors. AT&T U-Verse, for instance, offers four ''Internet Package[s]'' at different price points, differentiated in terms of the ''Downstream Speeds'' they provide. Verizon meanwhile asserts that ''the 100% fibe