Deadline soon for Californian broadband upgrades or obstruction

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Moderately Lucid Legal.

The first shoe is about drop for the next round of California Advanced Services Fund broadband subsidies. Any “existing broadband provider” can file a letter with the California Public Utilities Commission saying it’s making a commitment to upgrading its infrastructure in a given area, using its own money. If it does, the CPUC will freeze that area for up to a year – not allow any CASF infrastructure grant or loan applications to move forward.

It’s anyone’s guess as to what’s going to happen. Maybe no one will file and the whole exercise becomes just a box to check off and move on. Maybe incumbent providers will take a hard look at their capital budgets, identify genuine gaps in their coverage and do the right thing. Or maybe we’ll see another round of map spam, amounting to a cynical gambit to stall the CASF-subsidised competition for a year and lock communities into sub-standard service for even longer.

Incumbents don’t have to make a binding commitment. Simply a commitment. The sort of promise that can be easily broken by a moderately lucid legal team with a sufficiently thick layer of excuses and weasel words.

The deadline is tomorrow, 1 November 2014. It’s a Saturday, so if anybody wanted to stretch it out until Monday, the next business day, then there’s a plausible argument they could, given the CPUC’s standard operating procedures. It might even be the first indication as to whether or not a moderately lucid legal team is on the case.

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Speech isn’t free when ISPs can set prices based on content

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FedEx doesn’t charge based on what a document says. Neither should Comcast or AT&T.

California Public Utilities Commissioner Catherine Sandoval has arguedand voted – in favor of regulating broadband infrastructure companies as common carriers, in much the same way as telephone companies, but with a “light touch”. She made her case in testimony at a congressional hearing in Sacramento in September, and later polished it and submitted it to the FCC for consideration in its network neutrality deliberations.

In doing so, Sandoval focused on the risks of allowing ISPs to make whatever deals they want – or ignore the deals they don’t – and then leaving it up to content and service companies to fight out any objections on a case by case basis at the FCC.

One of the risks she highlighted – far and away the biggest one, IMHO – is giving ISPs what amounts to a government-enforced license to regulate the content of speech…

The FCC’s proposal converts ISPs from a conduit for speech into an arbiter who gets to decide who has the fastest, cheapest, best path to reach Internet audiences. The FCC’s proposal does not limit ISPs to choosing who gets the best speeds and terms by who pays the highest price. It empowers ISPs to consider the messenger, message, method of delivering that message (peer-to-peer protocol, ftp protocol or other program or method), competitive effects on the ISP, and any other factor, as long as the FCC subsequently determined it was “commercially reasonable”…

Content-based regulations are “presumptively invalid under the First Amendment.”…“[T]he First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”

Treating broadband infrastructure – like other telecoms infrastructure – as a common carrier would instead, Sandoval argues, create a transparent and consistent set of rules everyone would play by, regardless of size or political disposition.

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Outside plant vandalism is an inside job

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bt photo
On the other hand, he might have just noticed that the concrete lid says “fiber”.

Good information regarding fiber optic networks is often hard to come by. Companies that own it – particularly last mile companies like AT&T and Comcast – don’t want customers or competitors picking apart their offerings, either in terms of unbundling network elements from managed service or trying to figure out in advance where gaps in service might be.

One reason reflexively given is security, but time and again events show that if there’s a threat to physical infrastructure, it’s from inside. The latest example is FairPoint Communications, a local exchange carrier in New England, as well as a few other markets around the U.S. Unionised workers there went on strike more than a week ago. Since then the company says vandalism has spiked and points a finger squarely at the strikers

In the nine days since the strike began, FairPoint has investigated eight incidents of vandalism to key components of its infrastructure and outside facilities…For the five years prior to October 17, 2014, the company investigated only one such incident.

“Most of the strikers are exercising their legal right to stop working and to publicize their position, but it is no coincidence that these acts of vandalism are being committed during the strike,” [company spokeswoman Angelynne] Beaudry continued. “It is not enough for strikers to deny that they are vandals. We understand that the vast majority would never vandalize. But it is time to help us stop the vandalism.”

Here on the central coast of California, we’ve had two major fiber cuts, in generally the same area, and both times the damage coincided with labor disputes (although AT&T took its share of the heat too). No direct evidence of a connection, but there’s no reason to think the timing was a coincidence either.

The information isn’t secret. If you want to know where fiber runs, just go out and look. It’s prominently marked, usually in bright orange. But even if it wasn’t, keeping information hidden doesn’t prevent damage. It comes down to the open source proposition: whether it’s infrastructure or software, the more people who know about it and care about it, the more attention will be paid to safety and security.

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Broadcasters delay spectrum auction for at least year, but hey, they’re entitled

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Ten years isn’t so long. Unless you’re a dog. Or the Internet.

The possibility of converting prime spectrum from TV broadcasting to mobile broadband use has been pushed off another year. The FCC is delaying the planned auction of 600 MHz broadcast frequencies until 2016, instead of next summer.

It’ll take that long to sort out a lawsuit filed by the National Association of Broadcasters – the primary lobbying organisation for TV and radio station owners – according to the FCC

Earlier this week, the court issued a briefing schedule in which the final briefs are not due until late January 2015. Oral arguments will follow at a later date yet to be determined, with a decision not likely until mid-2015. We are confident we will prevail in court, but given the reality of that schedule, the complexity of designing and implementing the auction, and the need for all auction participants to have certainty well in advance of the auction, we now anticipate accepting applications for the auction in the fall of 2015 and starting the auction in early 2016.

In an odd sort of statement, the NAB claimed the delay isn’t its fault. The process should take a long time. Or something like that…

As NAB has said repeatedly, it is more important to get the auction done right than right now. Given its complexity, there is good reason Congress gave the FCC 10 years to complete the proceeding. We reject suggestions that our narrowly focused lawsuit is cause for delay.

Neither broadcasters nor mobile telecoms companies have shown universal enthusiasm for the auctions, which, it is assumed, would raise billions of dollars, some of which would compensate broadcasters for the transferred spectrum and the rest would pay for upgrading U.S. public safety networks.

But the mobile bandwidth crunch is not slowing down, and that’s a problem that will impact everyone’s prosperity and quality of life. Ten years is way too long to wait.

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Cities can still use positive incentives to influence wireless broadband builds

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Cities and counties are still in control of their own property, at least concerning decisions about where to install wireless broadband facilities. In a recent ruling that tightens the limits on how local governments may regulate cell towers, antennae and other wireless infrastructure, the FCC said those rules don’t apply when cities are simply acting as landlords…

Courts have consistently recognized that in “determining whether government contracts are subject to preemption, the case law distinguishes between actions a State entity takes in a proprietary capacity— actions similar to those a private entity might take—and its attempts to regulate.”…Like private property owners, local governments enter into lease and license agreements to allow parties to place antennas and other wireless service facilities on local-government property, and we find no basis for applying [these restrictions] in those circumstances.

In fact, cities can go a little further and craft rules that create a preference – in some cases a requirement – for installing wireless facilities on public, rather than private, property…

Most industry and municipal commenters support the conclusion that many such preferences are valid. For example, some commenters assert that such preferences are not unlawfully discriminatory as a general matter, but that they can violate [federal law] if they effectively “pressure” applicants to use municipal property or are coupled with ordinances making it too onerous to site anywhere else…however, determining whether a particular municipal property preference violates [federal law] depends on the specific details of the preference and related requirements…Therefore…we decline at this time to find municipal property preferences per se unlawful.

It’s hardly a blank check. Local governments can’t keep towers, antennae or other equipment off of private property, even if a city-owned site is available, but a certain amount of encourage is allowed.

With this latest ruling, cities have even less of a stick to wave at wireless companies, but retain the right to use public property as a carrot to creatively influence where facilities are built.

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Mobile broadband gets faster in California, but maybe not fast enough

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Mobile broadband is better in California, and improvements have been made quickly. That was one of the takeaways from a meeting of Central Coast Internet service providers and California Public Utilities Commission staff in Seaside last week. Jim Warner, a network engineer at U.C. Santa Cruz and chair of the Central Coast Broadband Consortium’s technical expert group, discussed his analysis of results from the latest round of the CPUC’s mobile broadband field testing.

“Performance has doubled in year”, Warner said, albeit with the recognition that the statewide results do not necessarily give a good picture of what’s going on in rural areas. Although there are some aspects of the CPUC’s conclusions “that would cause a statistician’s eyebrows to twitch”, overall the assessment of mobile carrier performance and adjustments made to account for actual user experiences are sound, as he later explained in a note

CPUC staff use their average measured speed as the advertised speed since cellular carriers generally don’t specify speed the same way that their wireline brethren do. One way to think about this is: If the CPUC used the average, users could expect Internet performance that met the California target half the time. That is not what consumers expect. Shifting the measurement by one standard deviation allows the expectation of meeting the service level to be raised to perhaps 80 percent. Making some allowance for availability of reliable service seems appropriate.

Even so, perceived improvements could well be temporary.

“Traffic will grow to fill the pipes”, he said. “That’s the story of the Internet for the last 30 years. What looks served today will look underserved tomorrow”.

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Comcast seems to think there’s a difference between complete or just overwhelming market control

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Comcast could end up with half of the broadband subscribers in the U.S. or maybe only something more than a third, if it’s allowed to take over Time-Warner and swap markets with Charter Communications. Whether it’s a half or just a third (or a bit more), depends on your definition of what broadband is and is not.

A Bloomberg article by Todd Shields and David McLaughlin breaks down the dilemma. If you take the FCC’s current minimum standard – speeds of 4 Mbps down and 1 up – then Comcast would only own 35.5% of U.S. fixed – wireline, for practical purposes – broadband subscribers.

On the other hand, if you read FCC chairman Tom Wheeler’s declaration that 25 Mbps is the new 4 as something other than a lobbyist’s bog standard bloviation, then the new Comcast’s national market share would jump to 50% or more.

The distinction appears important for Comcast’s quest

The argument matters because opponents say the $45.2 billion merger would result in a company with so large a market share it could squelch competition.

Under the faster standard, “the cable guys have a stone-cold monopoly,” said Mark Cooper, director of research for the Consumer Federation of America, a Washington-based nonprofit that opposes the deal. “The merger becomes intolerable if you understand that.”

The merger would combine the nation’s biggest and second biggest cable providers and the Federal Communications Commission is reviewing whether it is in the public interest. Rivals such as Dish Network Corp. and Netflix Inc., and some consumer groups, say the transaction would leave Comcast with too much power in the broadband market.

I’m not sure it really makes a difference. Just a third sounds less dire than more than half but either way it’s a controlling share of an uncompetitive market. And complete domination in California.

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Rural broadband needs are low and highly confidential, AT&T says

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AT&T knows what rural broadband customers need. And it’s not nearly as much as what people living in high potential urban and suburban communities need, according to arguments AT&T and DirecTv are making to the FCC, in support of their proposed merger

Within its wireline footprint, AT&T will extend its ultra-fast, fiber-to-the-premises (“FTTP”) GigaPower wireline broadband service with speeds of up to 1 Gbps to at least 2 million locations. At the same time, in rural, often underserved areas, AT&T will deploy fixed wireless local loop (“WLL”) broadband to an additional 13 million locations. Designed to perform as well as wireline broadband services advertised today at speeds of 15-20 Mbps, fixed WLL represents the nation’s best opportunity to begin bridging the growing digital divide between urban areas, which enjoy a rich variety of high-speed broadband options, and rural communities with few, if any, choices.

There’s a wee gap between “up to 1 Gbps” and “advertised today at speeds of 15-20 Mbps”. Or maybe not – neither claim actually promises to deliver anything in particular. But that’s okay, because AT&T has figured it all out, telling the FCC “the fixed WLL service will be offered with a usage allowance high enough to satisfy most customers’ needs”. How does it know? Well, it’s a secret…

AT&T currently expects the product to be offered with a usage allowance high enough to readily satisfy most customers’ needs, [BEGIN AT&T HIGHLY CONFIDENTIAL INFORMATION] [END AT&T HIGHLY CONFIDENTIAL INFORMATION] To determine an appropriate usage allowance that would meet the needs of most customers, [BEGIN AT&T HIGHLY CONFIDENTIAL INFORMATION] [END AT&T HIGHLY CONFIDENTIAL INFORMATION]

WLL delivers broadband service via mobile spectrum and cell sites, using fixed antennae and terminals at subscribers’ homes. Pricing, speeds and data caps are determined by the physics and economics of mobile infrastructure. That’s as good as it’ll get for rural customers, when AT&T cuts the cord.

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California shut out of rural community broadband grants, again

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Can’t see California from here.

For the third year running, the U.S. department of agriculture passed over California while handing out Community Connect grants, a program run by the Rural Utilities Service. The agency released a list of 8 relatively small broadband projects that will be getting a total of $13.7 million. None of which are in California.

It’s possible, of course, that there were no applications submitted from here. I’ve been looking around on the web to see if that info has been published anywhere, but no joy so far. If you know where to find it, please post it in the comments below. I doubt that’s the case, but don’t have any hard facts to back up my opinion. Except that I do know that at least one proposal was submitted last year, because I worked on it.

Kentucky, on the other hand, which has less than 12% of the Golden State’s population received 3 grants this year, 2 last year and 1 in 2012. Since the program began in 2002, RUS has funded 18 Community Connect projects in Kentucky, more than twice the number (7) that have been approved in California over that time. Looking just at non-tribal lands, commercial providers in California received only 2 grants, while all 18 of Kentucky’s are private companies.

Ironically, Kentucky has been used by broadband advocates as an illustration of the extent of unserved territory here. From the California Emerging Technology Fund’s 2009 annual report

Although broadband infrastructure is available to 96% of California households, the 4% (or approximately 500,000 households and 1.4 million people) without access in rural and remote areas are spread out over about 25% of the state’s land area—equal to the size of the 37th largest state in land area, or about the size of Kentucky.

A major problem, shared by other Western states – no grants were given west of the Rockies this year – is that USDA in general and RUS in particular are set up to serve small counties with lots of small family farms, not big counties with big spreads that are often corporately owned. Demographics and population distributions are different. So are the economics and structure of the broadband business. Indian lands fall into a different category, so Californian tribes have done relatively well over the years.

Two ways to solve the problem: get RUS to better adapt its broadband development programs to Western realities and get to work on figuring out how to better fit our square pegs into their round holes. We need to do both. In the meantime, though, we can console ourselves with the thought that the California Advanced Services Fund has more than 10 times the money for broadband infrastructure grants just in this state, than Community Connect has for the entire country. It’s really not so bad here.

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FCC narrows scope for local review of wireless build outs

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The FCC’s decision to tell local governments that if they don’t approve permit applications for relatively minor modifications to wireless infrastructure within 60 days then permission is automatically “deemed granted” is a bit less than absolute. Local governments can still go to court to stop installations, and there’s a narrow set of reasons that permit applications can be rejected.

But make no mistake: the FCC is severely limiting the scope for local review of “collocation, removal, or replacement of transmission equipment on an existing wireless tower or base station,” or other work on on that infrastructure if it doesn’t involve a substantial change to its existing dimensions. “Substantial change” is quantitatively defined at length in the FCC’s order. For example if the height of an existing tower that isn’t in the public right of way is increased by more than 10% (with a couple very specific exceptions), then it’s a substantial change. If not, the new rules apply.

Local governments can delay incomplete permit applications, but have to provide a clear punch list of needed items. Otherwise…

States and localities may continue to enforce and condition approval on compliance with generally applicable building, structural, electrical, and safety codes and with other laws codifying objective standards reasonably related to health and safety.

Health and safety standards, though, do not include – the scientifically unsupported – fears that the radio frequency transmissions might cause harm.

Any list of building code conditions that must be met has to be issued along with the permit within 60 days. If that doesn’t happen, then the applicant can notify the local government in writing that the deadline has passed and get on with the work.

Unless the local government decides to take the matter to court within 30 days. The scope for judicial review is as limited as the local agency’s authority, but not the time frame: everything slows down again to the speed of justice. Commissioner Ajit Pai’s declaration that “an applicant can start building on day 61″ isn’t completely true.

I’m barely scratching the surface of the entire Report and Order, which runs 155 pages and deals with many other issues related to local review, such as environmental and historical preservation rules, temporary towers and the FCC’s general “shot clock” rule. And expect this ruling, too, to be challenged in federal court. Lots more to read and write about.

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