State lawmakers should exorcise muni broadband evil, federal advisors say

Stomp on cities. Boiled down, that’s the conclusion of a group advising the Federal Communications Commission on what states ought to be doing to promote broadband deployment. The FCC formed the Broadband Development Advisory Committee earlier this year, which is top heavy with lobbyists and others from big and mid-sized telecoms companies, very weak on local or state government representation and devoid of any municipal broadband experience. The committee spun off five working groups, including one tasked with writing model laws for states to adopt or, potentially, for the FCC to impose through its assumed preemption powers.

The result is a wish list that might have been – and probably was – written by lobbyists from big cable, telephone and mobile companies, and includes…

  • Statewide cable franchising. California adopted this approach more than ten years ago, when the Digital Infrastructure and Video Competition Act (DIVCA) was passed. Instead of negotiating for franchise rights on a city by city, county by county basis, cable companies get blanket permission to operate from the California Public Utilities Commission, which has virtually no discretion or oversight authority. It simply hands out full or partial statewide franchises and hopes for the best. In some ways DIVCA has reduced barriers to broadband deployment, but it has also given cable companies free rein to cherry pick high revenue service areas, ignore regulatory standards imposed on other telecoms companies and otherwise use its position as the sole provider of advanced service – 25 Mbps down/3 Mbps up – to extract monopoly rents from consumers and businesses alike.
  • Eliminate municipal broadband service. The group’s draft takes a convoluted path, but the destination is clear: keep cities out of the broadband business. The general advice to local governments is to butt out of broadband issues, but if they are determined to do something anyway, they should give money, real estate and other assets to incumbents and trust that all will be right. Owning and operating a broadband system is a city’s last resort, and only allowable if it can be shown that every other possibility has been exhausted – in other words, only if incumbent cable and phone companies meekly concede their turf. Good luck with that. As a kicker, if a city or county owns dark fiber – not uncommon in California – it wouldn’t be able to keep it. At least not for anything beyond its own “reasonably anticipated” needs. Any spare municipal fiber capacity could be claimed, at will, by a private broadband provider for a pitifully low price.
  • Preempt local ownership and oversight of poles and other wireless assets. This one is no surprise to anyone who’s been following the money the wireless policy debate in Sacramento. The group’s draft tracks very closely with California senate bill 649, which was vetoed by governor Brown last month. Discretion regarding installation of most wireless facilities on private property and in the public right of way would be eliminated and, as with dark fiber, telecoms companies could make free use publicly owned property, such as streetlights, at rental rates far below market value.

The FCC’s model state code working group is expected to finalise its recommended policy in January. After that, expect the political money men to pressure the FCC to impose as much of it as it can on a federal preemption basis, and then deploy to state capitols to mop up what’s left.

Common carrier death watch begins in Washington, D.C.

As the Federal Communications Commission wrapped up its November weed whacking on Thursday, attention turned to the expected release of a draft decision that will overturn the Obama-era decision that classified broadband as a common carrier service. According to a Reuters story, it’s coming soon…

The head of the Federal Communications Commission is set to unveil plans next week for a final vote to reverse a landmark 2015 net neutrality order barring the blocking or slowing of web content, two people briefed on the plans said.

In May, the FCC voted 2–1 to advance Republican FCC Chairman Ajit Pai’s plan to withdraw the former Obama administration’s order reclassifying internet service providers as if they were utilities. Pai now plans to hold a final vote on the proposal at the FCC’s Dec. 14 meeting, the people said, and roll out details of the plans next week.

There are two separate issues: whether broadband is, and should be regulated as, a common carrier service, and should the FCC set out rules that require Internet service providers to treat all traffic the same. The two issues are linked, but not necessarily inseparable.

In 2010, the FCC made its first try at imposing network neutrality regulations, but it was nixed by a federal appeals court. The rationale was that net neutrality is a common carrier kind of rule, so that needed to come first. The decision left open the faint possibility that there might be a way to avoid common carrier status and still do net neutrality, but the FCC took the safe route the second time around.

It seems certain that FCC chair Ajit Pai will put a draft decision on the table that says broadband access is an information service, and not a telecoms service. That’ll take it out from under the common carrier – and common sense – umbrella. Whether he tries to keep some of the related network management and consumer protection rules in place anyway is an open question.

Expect an answer in the next few days.

MBEP conference follows local path to ubiquitious regional broadband

Bringing ubiquitous high speed broadband to the Monterey Bay region requires goals set and pursued at the grass roots level, but benchmarked against a regional plan and standards. That was the top line consensus from a roundtable brainstorming session at the Monterey Bay Economic Partnership’s third annual State of the Region conference, held last week in Monterey.

The region takes in San Benito, Santa Cruz and Monterey counties. It quickly became apparent that one size would never fit all in an area that bundles high tech Santa Cruz and uber-rich Pebble Beach with Salinas Valley farming towns, the Paicines cattle country and the isolated peaks of the Santa Lucia and Gabilan mountains. The solution was a five step process that creates a range of commonly defined standards and objectives that would be applied locally, as deemed appropriate by individual communities:

  • Get upfront, region wide buy-in to a regional broadband development master plan with a small contribution to its cost from a sufficient number of local governments, businesses and other organisations. If they’ll pay a little to create the plan, then it’s likelier they’ll pay more to implement it. If not, it’s best to know now.
  • Prepare the master plan and in the process establish a broadband development baseline and a ladder of well defined service tiers above it.
  • Outline the steps necessary to reach each successive tier, with options for a local government to go it alone or collaborate with similar situated communities across the region.
  • Create a neutral certification program that documents and validates each community’s climb up the commonly agreed service tier ladder.
  • As each step up the ladder is certified, automatically move to the next one, at a pace determined by local needs, aspirations and resources.

The group also made it clear that broadband service standards aren’t only about speeds. Affordability and direct access to basic building blocks, such as dark fiber, are just as important. So is differentiating between residential needs and the more complex and tightly defined broadband service requirements of businesses.

The next step is to form a regional leadership team that will, as the roundtable session’s title put it, move “from ideas to action”.

FCC bases big decisions on small facts spooned out by big telecoms companies

The Federal Communications Commission jumped in on the side of Charter Communications in a dispute with the Minnesota Public Utilities Commission. The case was bumped to a federal appeals court – the MPUC lost the first round – and now the FCC has moved in to protect its turf.

The question is whether Minnesota can regulate voice over Internet protocol (VoIP) phone service the same way it does old style analog service. There’s a great article by Jon Brodkin in ArsTechnica that goes through the details of the case, so I won’t repeat it here.

My interest is in the insight I think the FCC’s arguments give into its thinking on whether or not broadband should be classified as a common carrier service, and if not, how does it regulate it, if at all?

The FCC says it hasn’t decided once and for all if VoIP is a common carrier service, but its skidding rationalisations in the Minnesota case and its draft decision rolling back restrictions on when telcos can replace copper service with wireless indicate that it’s happy to zero in on a microscopically literal interpretation of narrow circumstances when it suits a pre-determined outcome, and wave away any annoying facts to the contrary.

In the draft decision on wireline deployment the FCC would abandon what it calls the “functional test” – the practical and overall impact – when assessing infrastructure rollbacks, in favor of a far more narrow standard based on a provider’s own service descriptions. Extending that line of reasoning to VoIP, it doesn’t matter that it’s functionally indistinguishable from legacy service. What’s important is what Charter, in this case, says it is.

It’s a leap, but not an impossible one, to take it one step further and imagine the FCC applying that logic, such as it is, to broadband service.

The core function of broadband service is to transport bits between two points, as determined by the users on both ends. Internet service providers do that “without change in the form or content of the information as sent or received”, as the statutory definition of telecommunications service puts it. It should be a clear cut decision.

But in its draft wireline decision and its court filing in the Charter appeal, the FCC prefers to ignore a common sense reading of the facts in favor of swallowing the marketing claims of big telecoms companies hook, line and sinker. If there was any doubt as to whether the FCC will scrap broadband’s status as common carrier service, it’s gone now.

Incumbents get first grab at California broadband subsidies and subs in January

Yesterday, California’s broadband infrastructure subsidy fund began its transition from a bottom-up program focused on independent, locally developed projects, to a top down one that’s gamed for the benefit of incumbents. The first post-assembly bill 1665 rules for the California Advanced Services Fund (CASF) were put on the table by the California Public Utilities Commission.

The draft lays out the process for facilities-based incumbents – broadband service providers that own and operate their own equipment, wired or wireless – to exercise their right of first refusal for unserved areas. If they claim an unserved area by 15 January 2018, they’ll effectively have at least year to build out. No one else will be eligible for CASF subsidies.

No one else.

What the draft rules imply but don’t explicitly say, and AB 1665 clearly states anyway, is that an incumbent who takes a right of first refusal on an area will be eligible to apply for CASF grants to pay for at least a part of the work needed to upgrade it. In other words, they go straight to the head of the line.

The process will be more or less run the same way that a much more restrictive right of first refusal offer was three years ago. At the time, only Frontier Communications, in its pre-Verizon acquisition days, held back a handful of small territories. At the time, incumbents couldn’t tap into CASF money and had to pay for the promised upgrades themselves.

This time around, with Frontier hemorrhaging subscribers and shareholder equity and AT&T bent on fencing off its decaying rural copper systems so it can replace them with low performing wireless systems, it might be different. Frontier lobbied hard for AB 1665, in the apparent hope it could turn CASF into its private piggy back. AT&T will be less interested in the money than in protecting its rural monopolies. But both will have an incentive to jump in on the right of first refusal.

What they won’t have a particular incentive to do, though, is to fulfil any of the promises they make. There is no particular penalty for claiming an area for a year, stalling beyond that however they long they can, and then doing nothing at all. There’s a general rule that could be used to penalise false statements, but AT&T and Frontier employ plenty of lawyers and lobbyists who know how to bend and break the truth legally.

The CPUC is scheduled to vote on the right of first refusal scheme next month. Public comments can be submitted for the next two weeks.

Draft resolution – California Advanced Services Fund interim “right of first refusal” processes and timelines, 14 November 2017
Final resolution – implementation of new timelines for California Advanced Services Fund applicants, 26 June 2014
Chaptered version, assembly bill 1665, 15 October 2017

FCC broadband committee offers letter to Santa deployment advice

There was a mix of good and awful policy on the table last Thursday as the Federal Communication Commission’s broadband deployment advisory committee (BDAC) heard from its five working groups. The BDAC was created by Ajit Pai shortly after he got the nod to be Donald Trump’s FCC chairman. Its job is to offer advice on how to speed up broadband deployment by breaking down legal, regulatory and bureaucratic barriers. Although there are nuggets of sound policy to be found, what it came up with mostly reads like wish lists written by telecoms lobbyists.

The committee and working groups membership is top heavy with big (and mid sized) telecoms companies and their lobbyists, but there are some bright lights as well. Cities are represented, but by policy-level people, not by people with muni broadband or other industry expertise.

And it shows.

The five working groups dealt with competitive access to broadband infrastructure, model code for municipalities, model code for states, removing state and local regulatory barriers and streamlining federal siting. The results are, to put it kindly, uneven.

The worst showing was from the model code for states group. It pretty much wants to ban municipal broadband ventures, although instead of coming out and saying so, it recommends first running projects through a gauntlet of preferred options, including subsidising incumbents. Few muni broadband proposals would survive it. The state model code group also recommends preempting local ownership of broadband-relevant assets, including dark fiber. If a city owns dark fiber or light poles, private companies could commandeer them at will for a price far below market value.

The muni code group, on the other hand, had some worthy ideas about streamlining permit processes and, contrary to the state group, recommended local governments should maintain control of municipal property.

The working group looking at state and local regulatory barriers produced a lengthy indictment of the sins committed against broadband and wireless companies, and took an analytical, but sympathetic, look at federal preemption of pretty much anything that might upset a telecoms lobbyist.

There are many recommendations for streamlining federal processes, but the P word – preemption – didn’t come up. That would be unneighborly, I suppose. The group looking at competitive access focused primarily on pole attachment issues, with one touch make ready rules at the top of the list.

A few recommendations, mostly preliminary, were adopted by the full committee, with the meat of the proposals expected to get a full review in January. What happens after that – or even, before – is unclear, although if the the effusive reaction of commissioner Michael O’Rielly is any indication, the FCC majority will cherry pick the policy bits that support the positions they’ve espoused all along, and run with them.

We’re not selling lit service to Verizon, says SCE

In an apparent attempt to dial down the heat on regulatory review of its dark fiber leasing deal with Verizon, Southern California Edison wants to remove any reference to electronics from the paperwork it filed with the California Public Utilities Commission.

SCE has been in the dark fiber business for a couple of decades, and is certified by the CPUC as a competitive telephone company – it holds a certificate of public convenience and necessity (CPCN) that allows it to lease dark fiber and sell other telecommunications services, including lit data transport, on its 5,000 mile fiber network. Because it’s first and foremost a regulated, privately owned electric utility, there are conditions attached, such as sharing revenue with ratepayers and closer, ongoing scrutiny of its telecoms business by the CPUC than would otherwise be the case.

Earlier this year, SCE asked the CPUC to give its blessing to a master fiber lease agreement with Verizon. The idea was to have the CPUC approve top level terms for what would be an open-ended business arrangement between SCE and Verizon. Within the constraints of that master agreement, the two companies would be able to negotiate leases for particular fiber strands on particular routes as the need arose over time. It’s a common practice in the fiber business and would eliminate the need to file the necessary, but nearly identical, paperwork with the CPUC every time SCE leases a new strand to Verizon.

At first, it seemed uncontroversial. The commissioner responsible for the review, Cliff Rechtschaffen, outlined a perfunctory decision making process. Then two things happened. The commission began an overall look at the way utility poles are managed in California, and Pacific Gas & Electric asked for essentially the same CPCN authority SCE has, under terms that were largely similar, but used a different formula for determining how money should be split between ratepayers and shareholders. Rechtshaffen widened the scope of his enquiry, citing, among other things, SCE’s apparent intention to sell lit services to Verizon. In other words, instead of leasing bare strands of dark fiber and letting Verizon worry about the rest, it would presumably be attaching electronics to each end and transporting data back and forth. Which is something PG&E also wants to do.

Since then, TURN, an old school consumer advocacy group, and the cable industry’s lobbying front organisation have jumped in on the proceeding, even as California’s recent wildfire catastrophes have made relations between the CPUC and privately owned electric utilities increasingly fraught.

SCE’s latest move is to tell the CPUC that it wants to take out the word “electronics” from its original application “because it suggests that the subject of the Application involves lit fiber, when it does not”.

Since it’s the first time around, PG&E will get a hard look at its request for telephone company status, and there’s no doubt a decision will take many months, if not years. SCE, on the other hand, has been in the fiber business for nearly 20 years, operating under rules approved by the CPUC that have provided significant benefits to electric ratepayers and telecoms subscribers, who are pretty much the same people anyway. Neither the company, its customers or the public that depend on both should have to suffer through an interminable review of a simple contract that plays by those rules.

Google Fiber picks MDU cherries in Orange County

Google Fiber is figuring out how to play small ball and still get thousands of fiber to the home subscribers. In its latest blog post, Google tells how it’s expanding its fiber footprint – actually, making lots of tiny paw prints – in the southern California multi-dwelling unit market…

The Village is the latest apartment community in Orange County with access to our super fast Internet + TV. Additionally, we announced on Thursday that sign ups are now open for residents of The Park at Irvine Spectrum. More than 1,400 residents there will have Fiber service available to them in early 2018.

Since teaming up with Irvine Company last year, we’ve been hard at work to bring Fiber to a number of residential and commercial properties in Orange County. Today, thousands of people in Orange County can sign up for Google Fiber.

It’s not clear whether Orange County is an exception to Google’s no more television service decision. My guess is that Google lit up The Village before it announced that business decision last month.

Either way, going after apartment and condo dwellers in upscale Orange County should be a slam dunk for Google. It can work with building owners to get properties wired up, and the region has a considerable amount of fiber in the ground. It’s a standard, if not universal, construction practice to install fiber in new MDUs in southern California, and elsewhere. The cost of building a lateral connection from a nearby fiber route into a building is typically in the low tens of thousands of dollars range – $10,000 to $20,000 is common, $30,000 would be high, although not unheard of. Even if everything else combined to create a total bill of $100,000 to $200,000, in a 1,000 unit complex, Google’s out of pocket cost still comes out to something like one to two hundred dollars per home “passed”.

Don’t take those numbers to the bank – it’s completely back of the envelope guestimating – but it shows that there’s still some running room for the actual fiber version of Google Fiber (as opposed to its wireless fallbacks), while staying within the bounds of a shrinking capital budget for network expansion.

Quickest way to defeat cyber security is to not engage it

Newsflash! Bad software development practices cause bad results. That’s the gist of a press release issued by Appthority, an IT security company specialising in the mobile enterprise sector.

What Appthority found isn’t a particular revelation. Developers will often hard code their own login credentials into apps while writing and debugging early versions, just to keep things simple. If they forget to remove that data before moving into beta testing and launch phases, it’s there for the taking. And exploiting.

And that’s what Appthority claims it found in hundreds of mobile applications, including “an app for secure communication for a federal law enforcement agency”.

The core problem is developer laziness. It’s tempting for a coder to take shortcuts while developing an app, with the sincere intent of cleaning things up later. Except later never comes. With apps often the work of a single person or a small team, quality control checks are sparse – a problem not confined to small shops, by the way. Right now, it’s up to the stores – Apple and Android, primarily – to do the final QC work. They’re effectively the last line of defence and I’d bet they’re taking a look at how they can better target this particular problem.

One measure they should consider is disbarring repeat offenders from their developer programs. It’s easy to make a mistake out of ignorance, but failing to learn from the experience is pure stupidity.

As far as high security applications go, it’s up to the end user to confirm that an app meets spec. A lack of IT talent and, even more importantly, work ethic is an increasingly worrisome problem at the federal level, at least judging by the most recent GAO report.

Appthority says that it notified the companies most involved, but there are still 170 affected apps “which are live in the official app stores today”. It didn’t release a list of the apps, though, so there’s no way of knowing whether any are sitting on your phone now.

Comcast asks FCC for privilege without responsibility

Comcast has joined Verizon in pushing the Federal Communications Commission to override state and local laws that might affect their business. In a required notice filed after a private meeting with FCC chair Ajit Pai’s top staffers, a lawyer for Comcast said they urged the FCC to overturn its 2015 decision to regulate broadband as a common carrier service, and to make sure that state and local governments didn’t try to pick up the slack…

At the meeting, we reiterated Comcast’s support for restoring its prior classification of broadband Internet access service (“BIAS”) as an interstate information service and reversing the 2015 decision to classify BIAS as a [common carrier] telecommunications service…

We also emphasized that the Commission’s order in this proceeding should include a clear, affirmative ruling that expressly confirms the primacy of federal law with respect to BIAS as an interstate information service, and that preempts state and local efforts to regulate BIAS either directly or indirectly.

Comcast and Verizon are worried about state initiatives like California’s assembly bill 375, which would have restored consumer privacy rules scrapped at the national level. It was eventually brought down by an all out attack by telecoms lobbyists who control millions of dollars of payments made to legislators in Sacramento. But the effort will, in all likelihood, be made again next year, and Comcast wants to head it off.

But it’s about more than just a few bills. If – when – the current FCC follows through on its promise to scrap broadband’s common carrier status, Internet service providers, like Comcast, will lose their existing exemption from consumer protection laws at both the state and federal level. Although it’s under challenge in a federal appeals court, that exemption basically puts the FCC in charge of regulating most aspects of common carrier telecoms services. Even the Federal Trade Commission can’t set business rules for common carriers.

Comcast likes the advantages, such as immunity from state and federal consumer laws, that come with a common carrier label. But it doesn’t want the common carrier obligations, such as net neutrality rules or FCC oversight, that follow. It would be reckless if the FCC accommodates them.