Caltrans open trench notification bill signed by governor

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California governor Jerry Brown signed assembly bill 1549 on Friday, which means it will be law as of New Year’s Day. Authored by assemblyman Jim Wood (D – Healdsburg), the bill requires Caltrans to let everyone who is interested know when there might be an opportunity to install broadband conduit in a highway construction project…

During the project planning phase of a department-led highway construction project that was initiated on or after January 1, 2017, is parallel to the highway, and involves construction methods that are suitable for installing broadband conduit, the department shall notify companies and organizations working on broadband deployment of the project on its Internet Web site to encourage collaborative broadband installations.

It remains to be seen how Caltrans will interpret this new requirement, as well as language which specifically allows private companies and organisations “working on broadband deployment” to collaborate on state highway projects. But it doesn’t require Caltrans to reciprocate.

I was in a meeting with Caltrans officials and assemblyman Wood’s staff in May to discuss an earlier draft of the bill. The people from Caltrans took the position that they were already doing all the notification that was necessary, although the web link they offered turned out to be broken. With a diligent, district by district search, a lot of information can be found about upcoming projects. But to be of any practical use, you would have to take a weekly, if not daily, trawl through the Caltrans website to see if anything new had appeared, and spend a lot of time reading through project descriptions and specifications to figure out if there was, indeed, a genuine opportunity to install conduit as part of the work.

The purpose of AB 1549 is to make Caltrans a more willing and cooperative partner in infrastructure development of all kinds, something the department fought during its unanimous passage through the legislature.. The bill – now, law – requires Caltrans to meet with stakeholders to try to come to agreement on information availability, as well as a defined process for installing conduit in highway projects, both on its own initiative and in collaboration with broadband developers – incumbents, independents and communities alike.

I’ve advocated for and helped to draft AB 1549. I’m involved and proud of it. Take it for what it’s worth.

Advertising group sides with Verizon, slaps Comcast Internet claims

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When elephants mud wrestle.

Comcast’s advertising claims that it “delivers America’s fastest Internet” and “the fastest, most reliable in-home WiFi” aren’t supported and should be pulled. That’s the finding of the advertising industry’s self-regulation board, called the National Advertising Division (NAD). Responding to a complaint filed by Verizon, which naturally would prefer you think it has the fastest Internet service, NAD said Comcast used dubious data to back up its pitch

As support for its claims that XFINITY delivers America’s “fastest Internet,” Comcast relied on crowdsourced data from Ookla’s “Speedtest” application. Ookla’s “Speedtest” is an application which consumers download on their mobile devices and can run to measure their current upload and download speeds. Ookla’s “fastest Internet in America” award is based on a different methodology than previous NAD cases involving superior speed claims, but is also intended to show the “top-end performance of a given ISP.”

However, NAD noted in its decision, instead of relying on an aggregation of crowdsourced data on download and upload speeds, Ookla based its award on the top 10 percent of each ISP’s Speedtest download results.

NAD determined that Ookla’s methodology wasn’t a good fit for the purposes of substantiating Comcast’s overall superior speed performance claim that “XFINITY delivers the fastest Internet in America.” NAD recommended the claim be discontinued.

The WiFi claim was skating on even thinner ice – it was based on an in-house comparison of Comcast’s and Verizon’s home routers.

NAD also dinged Comcast for saying “Verizon is eliminating its traditional home phone service in certain markets” and that “Verizon is discontinuing its copper wire-based home phone service”. It called the statements “potentially confusing” and recommended Comcast change it to avoid giving the impression that Verizon was eliminating phone service completely.

Comcast’s response was to disagree and say it would appeal the finding.

North coast, eastern Sierra and San Joaquin regions up for California broadband consortia grants

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That’s pretty much the speed of broadband too, in these regions.

Three more regional broadband consortia projects trickled onto the California Public Utilities Commission’s agenda for next month. A draft resolution that, if approved, would give a total of $493,000 from the California Advanced Services Fund (CASF) to broadband consortia on the northern coast, the eastern Sierra and the San Joaquin Valley regions.

The Redwood Coast Connect Broadband Consortium, based at Humboldt State University, and the San Joaquin Valley Regional Broadband Consortium, based at Fresno State, are up for their second round of financing – each received $450,000 grants in the first round, which started in 2011.

The San Joaquin consortium would get $180,000 for a three year program that’ll focus on digital literacy classes and broadband marketing efforts aimed at signing up 300 new Internet subscribers annually. The project will also work on improving connectivity and deployment of new technology in the health care and agricultural industries in the San Joaquin Valley. The region includes San Joaquin, Stanislaus, Merced, Madera, Fresno, Kings and Tulare counties, and the western half of Kern County.

Three counties – Del Norte, Humboldt and Trinity – comprise the Redwood Coast region, and the focus there is on infrastructure deployment. Assuming the $208,000 grant is approved, the consortium will have two years of funding to work on the Digital 299 middle mile project, currently under review for a $51 million CASF infrastructure grant, as well as projects along U.S. 101between Eureka and Crescent City and in the Klamath River area. The consortium also plans to bird dog AT&T’s planned – or at least promised – infrastructure upgrades.

The third group, the Inyo Mono Broadband Consortium, plans to produce maps, databases and other information that can be used by service providers to improve broadband access, and specifically to make greater use of the open access Digital 395 middle mile fiber route that runs the length of the region. They’re up for a $105,000, two year grant. In the last round of CASF consortia grants, Inyo and Mono counties were included in the Eastern Sierra consortium with eastern Kern County; this time around the group split into two consortia.

The consortia grant proposal for eastern Kern County is still in the hopper along with eight other pending applications. A total of 15 consortia grant proposals were submitted in January. Three others were approved last month. Assuming commissioners approve these latest three grants, that’ll mean it’s taken nine months to process six grants, with no firm time table for the remaining nine. By contrast, the CPUC was able to process 14 consortia proposals – asking for twice the money – in less than six months during the 2011 round.

Draft resolution for Redwood Coast, San Joaquin and Inyo Mono consortia grants, posted 21 September 2016

Update: the CPUC has posted a revised version of the draft resolution, you can see it here.

Telcos improve broadband service data reporting in California, cable not so much

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California has a big, new batch of broadband availability data to chew on. The California Public Utilities Commission has updated its broadband availability map with information current as of 31 December 2015. The data is submitted to the CPUC and the Federal Communications Commission by telcos, cable companies, mobile carriers, and some middle mile and fixed wireless operators.

I’m going to be spending a month or two diving into the new data. But after a couple of hours poking around in it, I’m happy to discover that the two biggest telephone companies in California – AT&T and Frontier Communications – have begun providing detailed information on the type of technology that’s deployed in any given census block that they serve – fiber to the premise, VDSL, ADSL or legacy DSL – along with specific upload and download speeds. That greater level of granularity will make for more accurate analysis of primary broadband infrastructure. It’s possible to make a reasonable judgement call as to what kind of technology is present on the basis of speed reports alone, but there’s enough grey area between, say, fast ADSL and slow VDSL to leave room for uncertainty. No longer, though.

Since the data was submitted before Frontier took over Verizon’s wireline business in California this past April, the information about those systems isn’t as good. We’ll have to wait until next year for that.

The cable industry didn’t improve its data reporting practices. Instead of providing census block by census block data about technology deployment and expected service levels, Charter, Comcast and Cox just report the “up to” speeds they advertise pretty much everywhere in the state. Time Warner is a little more granular, but not much. The reports are submitted by census block, but if they’re to be believed, then their service is uniformly excellent everywhere they offer it. That might be okay as a marketing message, but it doesn’t shine the same light on ground conditions or build consumer trust as the telcos’ data does.

The new version of the map also has updated mobile speed test information that’s collected first hand by the CPUC and subjected to rigorous analysis. At first glance, it doesn’t appear that there’s been a huge improvement in availability or performance – for the most part, mobile service fails to meet the CPUC’s minimum standard of 6 Mbps download and 1.5 Mbps upload speeds.

Take a look for yourself here.

California broadband subsidy fund is maxed out

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The California Advanced Services Fund (CASF) is just about topped up. The fund is used to subsidise new infrastructure in areas that lack broadband service that meets the California Public Utilities Commission’s minimum standard of 6 Mbps download and 1.5 Mbps upload speeds. It’s also used to pay for broadband facilities and marketing programs in public housing and to fund regional broadband consortia.

The money for it comes from a tax that’s assessed on telephone bills – right now, it’s about one-half of one percent of the charges for in-state telecommunications services. (And yes, you can call it a surcharge. Or a fee. Many people do. But face it, it’s indistinguishable from a common sales tax).

By the end of November, the CPUC will have collected all the money – $315 million – that the California legislature has allowed. So the plan is to reduce the rate to zero percent, as of 30 November 2016.

Depending on assumptions made, particularly regarding administrative costs, there’s something like $120 million left in the infrastructure kitty, and a few million each in the public housing and consortia accounts. That’s against a total of $144 million of infrastructure grant applications in the hopper. However, when competing projects with overlapping service areas are factored out, the fund is about at breakeven. Maybe $3 million in the red, maybe $10 million to $20 million in the black, either way it’s circling the drain. Of course, some of those pending projects could end up being denied or, more likely, dying of old age due to year-long delays in processing.

An attempt earlier this year by assemblyman Mark Stone (D – Santa Cruz) to raise the ceiling on CASF collections failed in the face of opposition AT&T and the cable television industry’s lobbying front. The issue will be back on the table when a new legislative session begins next year.

Muni fiber build RFP issued by Union City, California

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A lot of long haul fiber criss-crosses through Union City, a town of about 70,000 people tucked in between Hayward and Fremont in the East Bay area, just north of Silicon Valley. The City of Union City has issued a request for proposals from companies interested in bidding to “design and install a high-speed dark fiber network in City-owned conduit” to take advantage of that wealth, and to spur development of a new business and residential area…

The Union City Station District is a high-density development area located around the Union City BART Station. At buildout, the Station District will have 1.2 million square feet of office and 850+ residential units and live-work space along 11th Street.

An adjacent 80-acre in the greater Station District area is undeveloped and underdeveloped with some public streets. This area is zoned for new office, research and development, and flex-industrial businesses. Conduit and fiber will need to be installed in this area as new streets and additional points of access are built to accommodate the growth in a second phase of design and installation of a City-owned high-speed fiber network.

That high speed network will be built from a base that includes several more miles of city-owned conduit, and adjacent and intersecting middle mile fiber, including routes owned or operated by BART, PG&E, Level 3, Zayo, OpticAccess, AT&T, Verizon and XO Communications.

To answer the first question that always gets asked, yes, the City has a budget for it.

The deadline for questions is 11 October 2016 and proposals must be submitted by 18 October 2016. The RFP documents include the required elements for responses, as well as maps and plans of the area.

The official documents can be downloaded here, and that’s where any updates will be posted. If you’re just curious, here are direct download links that are current, as of today:

RFP for high speed fiber in the Union City Station District
Exhibit A
Exhibit B
Exhibit C

Tellus Venture Associates assisted the City of Union City in identifying the market opportunity and in developing the RFP. I’m not a disinterested commentator. Take it for what it’s worth.

California law allows cities to limit mobile carriers, not vice versa

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Necessary fixtures?

Last week’s California appeals court decision affirming local authority to deny permits for wireless facilities, and other telecoms infrastructure, on aesthetic grounds also went a long way towards clarifying what criteria and considerations cities can use when managing use of the public right of way.

The California public utilities code has two sections with different standards for telecoms project review. The first section (7901), which has a hundred year history, says telephone companies may

Construct…telephone lines along and upon any public road or highway…may erect poles, posts, piers, or abutments for supporting the insulators, wires, and other necessary fixtures of their lines, in such manner and at such points as not to incommode the public use of the road or highway.

The second section (7901.1), enacted about 20 years ago, adds

Municipalities shall have the right to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed.

In their dispute with the City and County of San Francisco, T-Mobile and partners claimed that the first section meant that they had an unlimited right to plant equipment in the public right of way and the second section meant that the City only had authority to regulate how the construction was done.

The appeals court did not buy that argument. The three judges agreed that the second section only related to construction activities – for example, a city can set specific times for when roads may be blocked – but the first section is what defines the limits that local governments can place on the design and other characteristics of the facilities being built.

In other words, a city can make a judgement as to whether or not, say, a proposed cell site would “incommode the public use of the road”. At least up to a point – the court said that discretion is not limitless. But it can be invoked if a project would “unreasonably subject the public use to inconvenience or discomfort; to unreasonably trouble, annoy, molest, embarrass, inconvenience; to unreasonably hinder, impede, or obstruct the public use”.

This appeals court almost certainly won’t have the last say. The case could go to the California supreme court, or eventually land in a federal court. And, as the appeals court judges themselves said, “of course, if the Legislature disagrees with our conclusions, or wishes to grant the wireless industry further relief from local regulation, it remains free to amend sections 7901 and 7901.1”.

Bill introduced in congress would ban state limits on local broadband service

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With two weeks to go before the U.S. congress takes a pre-election break, progress on broadband-related bills appears to be as bogged down as it was in the California legislature’s recently concluded session. That’s not stopping Silicon Valley representative Anna Eshoo from throwing another community broadband bill into the hopper, though.

House resolution 6013 would, in effect, overturn a federal appeals court ruling that said the Federal Communications Commission can’t preempt a state’s ability to restrict municipal broadband projects. The judges decided that congress never gave the FCC unmistakably clear authority to override a state’s traditional power over local – subsidiary – governments. So Eshoo’s draft bill attempts to be unmistakably clear

No State statute, regulation, or other State legal requirement may prohibit or have the effect of prohibiting any public provider from providing, to any person or any public or private entity, advanced telecommunications capability or any service that utilizes the advanced telecommunications capability provided by such provider.

As I read it, though, the bill runs into a problem when it defines “public provider” as

A State or political subdivision thereof, any agency, authority, or instrumentality of a State or political subdivision thereof, or an Indian tribe…that provides advanced telecommunications capability, or any service that utilizes such advanced telecommunications capability, to any person or public or private entity.

That’s very broad language, and will either kill the bill completely or be severely trimmed back. It’s one thing to say that a state can’t keep a municipal broadband utility from serving another, nearby city. It’s quite another to say, for example, that the coastal commission’s IT department can build a fiber to the home system on its own whim.

The bill isn’t destined to make it into law. It’s a policy statement by Eshoo, who is up for reelection in November, as was her earlier bill to impose dig once obligations on federal highway projects. That bill is in deep freeze now, but it succeeded in crafting language that found its way into other proposed laws. Congress hasn’t passed any of those bills yet, but there’s still ample time left on the clock.

Back to the (secret) drawing board for FCC set top box plan

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Shhhh. No one else is supposed to know.

FCC chairman Tom Wheeler’s plan to set up an industry licensing board to review apps created by pay TV providers that will allow third-party set top boxes to access their programming is slowing down, if not dead in the water. The senior republican and democrat on the house judiciary committee – Bob Goodlatte (R – Virginia) and John Conyers (D – Michigan) – released a joint statement yesterday blasting the plan, saying “there are many unresolved questions about this proposal, not the least of which is the fundamental question of whether the Federal Communication Commission even has the authority to create such a regime”.

That follows sceptical comments about the licensing scheme from three of Wheeler’s fellow commissioners, republicans Ajit Pai and Michael O’Rielly and democrat Jessica Rosenworcel.

Even Wheeler himself backpedaled, telling a congressional committee that the policy, at this point, is only “90 percent there” and discussions with stakeholders – industry lobbyists, in other words, continues.

Part of the problem is no one outside of the FCC knows what’s actually in the proposed set top box rules. No one except, apparently, the stakeholders who are negotiating with Wheeler. Conyers and Goodlatte have a problem with that, too. They sent him a letter asking him to make his draft plan public…

While much remains unknown, what is clear at this point is that the proposal would benefit from more public process. Different versions of this proposal have circulated for many months now, and while staff for both committees has held numerous discussions with Commission staff and other stakeholders, we have received conflicting accounts about this proposal. Absent a public vetting of the Commission’s proposal, it is unclear what the Commission is planning, let alone its impact.

Without further delay, we request that you release the text of the proposal.

That’s not the way business is done at the FCC, though. Draft decisions are kept secret until after – sometimes long after – approval by commissioners. A vote on the set top box plan, whatever it is, is scheduled for 29 September 2016.

Telcos can’t trouble, annoy, molest, embarrass, inconvenience, hinder, impede or obstruct Californians, court rules

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Don’t bother ugly ducklings, either.

California cities may regulate the aesthetics of cell sites and other wireless telecoms facilities. That was the ruling yesterday from a California appeals court, in a case brought by T-Mobile, Crown Castle and ExteNet against the City and County of San Francisco (h/t to Omar Masry there for the pointer).

The major argument in the case hinged on the definition of use. California law (section 7901 of the public utilities code, if you’re keeping score) says that telephone companies can build infrastructure on “public roads and highways in such manner and at such points as not to incommode the public use”.

T-Mobile and friends said that that San Francisco couldn’t reject a permit for a wireless facility on the basis of appearance. In other words, use of a road has nothing to do with aesthetics and ugly doesn’t incommode anyone.

Not so, said the unanimous opinion of the three first district appeals court judges who decided the case…

Plaintiffs’ argument rests on the faulty assumption that “use” of a public road means nothing beyond transportation thereon. We agree with [a federal appeals court ruling] that public use of the right-of-way is not limited to travel and that streets “may be employed to serve important social, expressive, and aesthetic functions”…

Nothing in section 7901 explicitly prohibits local government from conditioning the approval of a particular siting permit on aesthetic concerns. In our view, “incommode the public use” means “to unreasonably subject the public use to inconvenience or discomfort; to unreasonably trouble, annoy, molest, embarrass, inconvenience; to unreasonably hinder, impede, or obstruct the public use.”

But the ruling also makes clear that there are limits on a local government’s use of aesthetic concerns to regulate cell towers and telecoms facilities. The court said that it might be okay to regulate appearances around, say, Coit Tower and not necessarily in “other parts of the urban landscape”, particularly “an area already cluttered with other electrical and telecommunications equipment”.

Potentially this decision is far reaching and affects all kinds of telecoms infrastructure, wireless and wireline alike. My bet: the final word will eventually come from the California supreme court.

Download the full text of the decision here.