Microsoft’s usage data shows FCC overstates broadband availability

by Steve Blum • , , , ,

Microsoft oregon analysis 5dec2018

Microsoft is the latest organisation to tell the Federal Communications Commission that its broadband availability data is wrong. Earlier this month, an Internet advocacy group uncovered an egregious outbreak of map spam that skewed the FCC’s broadband analysis in several states, leading to a premature declaration of deployment victory (h/t to Wendy Davis at Digital News Daily for digging out the story). Last week, Microsoft presented its own analysis at the FCC, based on Internet usage data it collected itself, and came to the same conclusion…

The Commission’s broadband availability data, which underpins FCC Form 477 and the Commission’s annual Section 706 report, appears to overstate the extent to which broadband is actually available throughout the nation. For example, in some areas the Commission’s broadband availability data suggests that Internet Service Providers (“ISP”) have reported significant broadband availability (25 Mbps down/3 Mbps up) while Microsoft’s usage data indicates that only a small percentage of consumers actually access the Internet at broadband speeds in those areas.

Microsoft originally provided its data to the FCC in December, but it didn’t seem sink in. For example, the FCC claims that 91% of Oregonians can get broadband service a minimum of 25 Mbps download and 3 Mbps upload speeds. That’s the standard for usable broadband service adopted by both the FCC and the federal agriculture department. But Microsoft, which can see how fast its customers’ connection are, says the real figure is 60%.

Nationally, the discrepancy is even bigger. The FCC did its victory dance based on data that seemed to show that only 25 million people in the U.S. lacked access to that minimum broadband service level. Microsoft’s analysis indicates that 163 million U.S. residents “do not use the Internet at broadband speeds”. Availability and actual usage are two different metrics, but those differences cannot, by themselves, account for the 138 million person gap. Service providers might claim to offer a particular level of service in a given census block, but that doesn’t mean they’re offering it to everyone who lives there or that everyone can afford it.

Federal appeals court slows but doesn’t stop muni challenges to FCC wireless preemptions

by Steve Blum • , , , ,

Samsung small cell

The federal appellate court review of two Federal Communications Commission rulings that preempt local authority over wireless attachment and wireline excavation permits, and take away local ownership of streetlight poles and similar property will continue, albeit slowly. Yesterday, the ninth circuit court of appeals in San Francisco refused to ice the case completely, as requested by the FCC and as dutifully echoed by wireless carriers.

Instead, the court consolidated the twelve separate appeals of the September wireless attachment order into a single case, and assigned it to the same set of judges who will consider two appeals of the August wireline excavation order. A “special master” was given the job of sorting out the nuts and bolts of consolidating the twelve challenges to the wireless attachment ruling, and combining them with the two wireline excavation appeals.

The special master was directed to

Conduct a case management conference with the parties. The special master shall consider any issues he deems appropriate to manage the petitions effectively, including but not limited to the development of a briefing plan for the above-listed twelve petitions. The case management conference will be scheduled by separate order of the special master…

Proceedings in these consolidated petitions other than the case management conference are stayed pending the case management conference.

That means that the FCC won’t have to submit the records that its rulings were based on for now, giving it time to go through the motions of reconsidering those decisions. The ninth circuit will decide next steps after the case management conference is held and a plan for moving forward is proposed. The previously set 5 April 2019 date for (written) opening arguments was cancelled.

There are what amount to three interlocking cases in play. The cities, counties and associations challenging the September wireless order say that the FCC overstepped its authority in many regards, especially when it declared that municipal poles and other structures in the public right of way don’t belong to the agencies that installed them. The ones challenging the August wireline order make similar arguments about a blanket preemption of local rules regarding when telecoms companies can dig in the street, including seasonal restrictions – working on ice covered streets during spring freeze/thaw cycles, for example, can turn a nice stretch of asphalt into a dirt road.

The third case is a sham argument made by four wireless carriers – AT&T, Verizon, Sprint and the Puerto Rico Telephone Company – apparently in collusion with the FCC. The four corporate appeals were filed in different and friendlier appellate court districts, and initially succeeded in landing the case with presumably more sympathetic judges in Denver. They were not sympathetic enough though, accepting the argument made by the City of San Jose that eventually landed everything in San Francisco.

My clients are mostly California cities, including some that are directly involved in this case. I’m not a disinterested commentator. Take it for what it’s worth.

Links to petitions, court documents and background material are here.

Louisville’s Google project failed, but it was experimental success

by Steve Blum • , , ,

Microtrench

“Have a healthy disregard for the impossible", is a quote attributed to Google co-founder Larry Page. It’s a philosophy that took Google from two Stanford grads in a garage to being, on some days, the biggest company on the planet. It’s an acknowledgement that people aren’t always – or even usually – correct when they say you can’t do something. And it’s acceptance that sometimes the experts will be right.

(N.B. “Always listen to experts. They’ll tell you what can’t be done and why. Then do it!”, with thanks to Robert Heinlein).

It’s conventional wisdom in the tech world, where failure is treated as an apprenticeship. But it’s 180-degrees from the practice of politics, where adversaries are quick to thrust spears of blame into the tiniest chink in a project plan. That’s not the case, for the most part, in Louisville, Kentucky, where Google tried to build a fiber network with an extremely shallow microtrenching technique that didn’t work. The attitude in Louisville seems to be more Silicon Valley than House of Cards.

According to a story in Gizmodo (h/t to Fred Pilot at Eldo Telecom Blog for the pointer) Google tried for months to fix things, then decided to abandon the project because the technique simply didn’t work…

Google Fiber got something out of its time here. It learned that nanotrenching—the cost-saving process of burying fiber optic cables just two inches underground—was a bust. “We currently do not have plans that call for 2 inch trenches, our primary specifications are focused on going deeper,” a Google Fiber spokesperson said in an email.

“It is such a shame to think that we wouldn’t be having any of this conversation if they would have dug their little holes two inches deeper,” [Councilman Brandon] Coan said.

Gizmodo got the headline on its story wrong, though. It wasn’t Google’s experiment in Louisville that “failed”. The company tested a hypothesis and proved it false. That’s a successful experiment. What failed was a venture where both Louisville and Google invested their reputations.

Google is none the worse for it: there’s no shortage of cities still eager to give it a go if Google ever restarts fiber construction in a big way. To its credit, Louisville’s political leadership remains upbeat about the experience, judging from the Gizmodo story. Political types will dwell on the failure and ignore the success. But whiz kids in search of a garage, and the tech investors who back them, will remember Louisville’s success.

Wireless permit shot clocks aren’t really shot clocks, fee limits aren’t really limits, FCC tells appeals court

by Steve Blum • , , , ,

Riverside pole mount

The FCC wants to stall a federal appellate court review of its order preempting local ownership of street light poles and similar municipal assets located in the public right of way. Dozens of cities, counties and associations pushed back against the move, telling the court they would face “significant hardships” if their appeal was iced for months while the FCC pretends to reconsider its original ruling at its leisure.

There’s no hardship, the FCC told the San Francisco-based ninth circuit federal appeals court in its reply. Reiterating arguments it made when it successfully beat back the cities’ request for a judicial stay of the new rules, the FCC said its shot clocks and fee limits are just guidelines, and it’s not actually ordering local governments to do anything…

The Order thus does not compel a locality to take any action unless “a court of competent jurisdiction” independently orders the locality to do so after affording it full legal process and taking into account all relevant facts and circumstances.

Nor is there any reason to assume that, should any disputes arise, localities would necessarily lose such cases. Fees exceeding the Order’s safe harbors “may be permissible if the fees are based on a reasonable approximation of costs and the costs themselves are objectively reasonable.” Similarly, if particular localities are unable to act within the new shot clocks, they may “rebut the presumptive reasonableness of the shot clocks based upon the actual circumstances they face.” Localities thus may continue to charge any fees necessary to cover the full amount of their reasonable and actual costs, and may continue to take as long as reasonably necessary to review new siting applications, simply by explaining why these practices are necessary or appropriate under the particular circumstances they face.

California law also offers local agencies safe harbors, of a sort. The California legislature set 90 and 150 day shot clocks for wireless permit reviews when it passed AB 57 in 2015. Unlike the FCC’s, those shot clocks have teeth – if time expires, permits are “deemed approved”. In theory (it hasn’t been tested yet) it offers a faster path to a wireless permit than a lawsuit.

Two Californian ballot initiatives – propositions 218 and 26 – already limit local government fees to actual expenses, and cities and counties have established procedures for figuring it all out. Even AT&T has acknowledged that Prop 26, particularly, is as good a safe harbor as the FCC figures.

The big problem with the FCC’s September ruling is the way it treats municipal property. The FCC brushed aside common sense and its own previous rulings (do not confuse the two) when it said cities and counties don’t own assets they’ve built in the public right of way – things like traffic signals or street light poles. Instead, the FCC believes that locally owner property is actually part of the public right of way, and can’t be rented out at market rates. Unlike, say, an identical structure two feet away on publicly (or privately) owned land.

Wireless carriers are using the FCC’s ruling as a blunt instrument in negotiations with cities and counties. Even so, the FCC is correct up to a point: there will be no irreparable harm so long as local agencies refuse to be bullied.

Links to petitions, court documents and background material are here.

FCC’s broadband victory proclamation looks like regurgitated spam

by Steve Blum • , , , ,

Spam

A wireless Internet service provider dumped a big load of map spam on the Federal Communications Commission last year, which appears to have fooled it into thinking that its “reforms” have brilliantly resulted in broadband “being deployed on a reasonable and timely basis” in the U.S. It’s a problem we have in California, as well.

In a letter to the FCC, the broadband advocacy group Free Press pointed to widely unbelievable – impossible – coverage claims made by BarrierFree, an east coat wireless Internet service provider…

BarrierFree claimed to offer FTTH service with downstream speeds of 940 Mbps to 100 percent of the geographic area and 100 percent of the population of New York State, and also to 100 percent of those seven other states. BarrierFree’s over-reporting in this manner not only produces wildly overinflated deployment claims for itself and these eight states: it also has a substantial impact on the putative change in deployment at the national level. Indeed, BarrierFree is claiming to be the only ISP offering service in 15 percent of all Census blocks that were listed as unserved in the June 2017 Form 477 data.

The coverage and service data submitted by BarrierFree go beyond the inflated claims routinely made by WISPs. It said it offered near-gigabit fiber to the home service to everyone in those eight states, along with its implausible wireless product.

Although BarrierFree’s false reporting is unusual in its scope, it’s a common and chronic problem with the FCC’s broadband data collection system. And it’s not limited to WISPs. In California, companies that resell capacity on other companies’ lines say they’re providing service in tens of thousands of census blocks, when in reality they, at best, have agreements that might let them offer service if anyone asks for it and the underlying carriers have lines of sufficient quality available – not a sure bet by a long shot.

The FCC should have reviewed BarrierFree’s data before accepting it, let alone doing a victory dance based on it. It’s gullability such as this that’s led to bipartisan calls for better broadband data collection and mapping, even to the extent of getting a call out in the Trump administration’s latest budget proposal.

Tacoma weighs risk and reward with list of muni broadband suitors down to two

by Steve Blum • , , ,

The City of Tacoma has narrowed the list of possible buyers of its municipal cable system – aka Click – down to two local companies, Wave Broadband and Rainier Connect. A year ago, the city issued a request for information and qualifications and received responses from five companies. Only two initially met the city’s specifications – Wave and Yomura Fiber – but subsequent talks convinced Rainier to take on more risk, and led to Yomura’s exit, due to ownership concerns. Click is operated by, and operationally integrated with, the city’s municipal electric utility, which has a different set of federal rules to follow.

CTC Technology and Energy, an east coast consulting firm, helped evaluate the proposals and is recommending that the city go with Rainier, largely because it’s offering to lease the system for $2.5 million to $3 million per year, while Wave is only offering $1 million a year. But, CTC’s report acknowledges, Rainier is a riskier partner…

Wave is a large, private equity-backed, enterprise that is part of the sixth-largest broadband company in the United States. As such, it should easily be able to scale to meet the obligations contemplated in the term sheet and thus represents a very low risk proposition for the partnership.

Rainier Connect is a smaller, family-owned enterprise with far less scale and resources, and thus entails some more risk for TPU and the City than would a partnership with Wave. Rainier Connect does appear to have the capability to scale up operations to meet its proposed obligations.

Wave also has considerable experience building and operating broadband systems as the third player in markets with incumbent telephone and cable companies. Rainier doesn’t appear to have much, if any, experience as a facilities-based wireline cable company or Internet service provider.

Both companies promised to abide by network neutrality principles, and to offer discounted service to low income households, as required by the city. But they fudged on open access commitments.

As CTC’s analysis put it, both companies “will provide wholesale services consistent with its practices and policies in other markets”. Which really means that the access available to third party Internet service providers won’t be so open – in this case, probably a good thing because Click already competes with Comcast and CenturyLink in Tacoma. Forcing a private operator to cede space to other competitors on an unrestricted basis could very well lead to the kind of business case death spiral the Utopia project in Utah found itself in.

For now, the city is taking public comment before making a final choice.

City of Tacoma fact sheet, Click private/public partnership, 5 March 2019
CTC presentation, Click private/public partnership, 5 March 2019
CTC report, Rainier and Wave term sheets, 5 March 2019
CTC summary, Rainier and Wave term sheets, 5 March 2019
Rainier Connect, Click term sheet, 5 March 2019
Wave Broadband, Click term sheet, 5 March 2019

More documents regarding the City of Tacoma and Click are here, and more blog posts are here.

Four California counties say “no criminal charges” for PG&E

by Steve Blum • , , , ,

Pacific Gas and Electric won’t face criminal charges for its role in starting several northern California fires in 2018. District attorneys in Sonoma, Napa, Humboldt and Lake counties announced that they can’t prove a case. According to a press release from Sonoma County district attorney Jill Ravitch, the necessary evidence burned up along with everything else…

The cases that were referred for prosecution all required proof that PG&E acted with criminal negligence in failing to remove dead and dying trees. Under California law, criminal negligence requires proof of actions that are reckless and incompatible with a proper regard for human life, and any charges must be proven unanimously to a jury beyond a reasonable doubt. Proving PG&E failed in their duty to remove trees was made particularly difficult in this context as the locations where the fires occurred, and where physical evidence could have been located, were decimated by the fires.

Last year, Cal Fire determined that some of the many fires that roared through California’s wine country began when trees or other vegetation came into contact with PG&E electric lines. The deadliest fire – the Tubbs fire – which killed 22 people and spread as far as city neighborhoods in Santa Rosa, was not linked to PG&E’s equipment according to Cal Fire. That one was apparently started by electric lines strung across private property by the landowners.

So far, prosecutors in other counties affected by fires linked to PG&E infrastructure have declined to charge PG&E with crimes. But that’s cold comfort. Ravitch was careful to point out that “PG&E remains on federal criminal probation and is a defendant in many private civil cases arising out of the wildfires”, including one that the County of Sonoma is pursuing. The combined liability PG&E faces from those fires as well as last year’s even deadlier Camp Fire is expected to top $30 billion. Who gets paid and how much is now in the hands of a federal bankruptcy court.

T-Mobile plays daddy says no, go ask mommy game at CPUC

by Steve Blum • , , , ,

Brady bunch

Instead of playing nice with the other kids, T-Mobile is asking for parental intervention as the California Public Utilities Commission reviews its proposed deal to takeover Sprint. Possibly afraid its document dumping and foot dragging tactics are going to backfire and cause even more delays at the CPUC, T-Mobile sent a joint letter to commissioner Clifford Rechtschaffen yesterday, telling him don’t tap the brakes, you need to step on the gas dude

The Commission’s timely review will help ensure that Californians benefit from the broad range of benefits documented in the extensive evidence we have submitted to the Commission. Conversely, any action that could delay consummation of the merger would slow the build-out of New T-Mobile’s robust, 5G network in California, thereby delaying New T- Mobile’s ability to provide all consumers in California the benefits of that network—such as increased speeds and expanded coverage, lower prices, and a bona fide wireless alternative to traditional in-home broadband service.

The problem is that T-Mobile, which is walking point at the CPUC for both companies, keeps turning up the volume on both its claims of wonderfulness and the amount of paperwork its shovelling as it attempts to convince regulators that the deal won’t do more harm to consumers than good.

The FCC paused its review of the deal for at least three weeks, because T-Mobile’s latest filings “contain substantial new material and reach conclusions about the effects of the transaction that were not previously in the record”. The CPUC administrative law judge (ALJ) managing the case, Karl Bemesderfer, added four weeks to his review because T-Mobile similarly introduced thousands of pages of new evidence to shore up its arguments that its takeover of Sprint would benefit Californians, rather than killing a competitive market for mobile broadband services.

Rechtschaffen is the commissioner assigned to oversee the T-Mobile/Sprint review. It would be procedurally and politically dicey, to say the least, if he intervened. Similar pleas have been made in high profile telecoms mergers in the past to no apparent effect, particularly on Bemesderfer who rates as one of the keenest and most telecoms savvy ALJs at the commission.

Right now, he’s considering a request from the CPUC’s public advocates office to force T-Mobile to handover supporting documents that were requested weeks ago. T-Mobile’s response is expected tomorrow. We’ll find out whether they think a cooperative attitude will help speed up the process.

Trump’s budget plan puts broadband funding, mapping on table

by Steve Blum • , , , ,

Broadband gets several call outs in the proposed budget released yesterday by the Trump administration. One initiative is endorsed for another year, two are re-promised and one appears to be a response to widespread criticism. Line item figures haven’t been published yet, but even just the overview runs to 150 pages. Details on plans are scarce, but the broadband snippets that were included tell an encouraging tale.

Agriculture secretary Sonny Perdue has bucked the administration’s love fest with big, incumbent cable and telephone companies and pushed for community-based broadband service, particularly via rural electric coops. His department has also adopted a much friendlier attitude toward independent broadband providers in its ReConnect infrastructure grant program. The administration’s budget summary gives him props for that…

The Budget focuses on core Departmental activities such as agricultural research, rural lending, and protecting the Nation’s forested lands and private agricultural lands, while also supporting the Secretary’s efforts to improve services and expand broadband.

The so-called trillion dollar infrastructure program sets aside $200 billion “for other infrastructure priorities”, with “a portion” of it earmarked to…

Promote visionary projects and technologies that can strengthen our economic competitiveness, including 5G wireless communications, rural broadband, advanced manufacturing, and artificial intelligence.

The plan also promises continued efforts to make better use of wireless spectrum and a fresh look at the much criticised broadband data collection and mapping work carried out by the Federal Communications Commission and the National Telecommunications and Information Administration…

The Budget supports the application of innovative spectrum access techniques, spectrum sharing technologies, and spectrum leasing options to enable smarter and more efficient ways to leverage the Nation’s valuable and finite spectrum resources. As part of the Administration’s commitment to the Heartland, the Budget funds broadband mapping work to support ongoing efforts to increase the availability of affordable, reliable, and modern high-speed internet access in rural and underserved communities.

On the other hand, nothing is said about the federal government’s primary broadband subsidy program, the Connect America Fund. It’s run by the FCC and is directing billions of dollars to incumbents, much of which will be wasted on replacing rural copper networks with low capacity wireless service.

Presidential proposals are little more than openers in congress’ annual budget game. With spending bills constitutionally required to begin in the democrat-controlled house of representatives, it’s a safe assumption that lots of changes will be made as the process proceeds through the summer.

T-Mobile stalls CPUC, FCC reviews of Sprint merger with cheap lawyer tricks

by Steve Blum • , , , ,

Getting a fast approval of its proposed takeover of Sprint from federal and state regulators is supposedly T-Mobile’s goal, but it’s not helping itself. Last week, its habit of stonewalling and waiting until the last minute to provide information to regulators reviewing the merger resulted in a three week (minimum) hold at the Federal Communications Commission and a demand from California Public Utilities Commission staff to turn over stacks of documents previously requested. That demand could also lead to a further delay in getting California’s blessing for the deal.

According to an FCC notice, the agency needs time to review new claims about the wonderfulness of the merger made by T-Mobile and get public feedback…

On February 21, 2019, and March 6, 2019, the Applicants filed significant additional information regarding their network integration plans for 2019–2021, an extension of their previously filed merger simulation analysis to cover the years 2019–2021, and additional information regarding their claims related to fixed wireless broadband services. These filings contain substantial new material and reach conclusions about the effects of the transaction that were not previously in the record.

As a result, the FCC added at least three weeks to its review, pausing its informal 180-day shot clock at 121 days, with a restart not scheduled until 4 April 2019 at the earliest.

One problem is that a key filing describing T-Mobile’s plans to offer in-home service is marked confidential, so the FCC won’t be getting much public comment on it.

The CPUC’s public advocates office (PAO) asked the administrative law judge (ALJ) managing the case to force T-Mobile to produce more data, to back up the claims made in a similar avalanche of data ahead of hearings last month. That dump and T-Mobile’s introduction of new claims, resulted in a four week delay. The PAO says that “in response to the Public Advocates Office’s Data Requests to T-Mobile…T-Mobile provided only objections and no substantively responsive answers. T-Mobile’s objections are unfounded and inappropriate”.

The back and forth argument over evidence is eating up the extra time added to the schedule by the ALJ. If that causes the problem, the obvious solution is to add even more time, something T-Mobile claims it doesn’t want to happen.

Alternating last minute data dumps with lawyerly foot dragging seems like a bad way of getting a quick decision from the CPUC and the FCC. If T-Mobile is really in the hurry it claims to be to get the Sprint deal approved, it needs to start playing nice with the other kids.

Collected documents, dumped and otherwise, from the CPUC’s review of the proposed merger of Sprint and T-Mobile are here.