Tag Archives: fcc

California senate considers expanded net neutrality rights and enforcement tools


A second, more detailed network neutrality revival bill is on the table at the California capitol. Senator Scott Wiener (D – San Francisco) introduced senate bill 822 earlier this year, but it was little more than a statement of intent to jump into the Internet regulation void left by the Federal Communications Commission when it repealed network neutrality rules and stripped broadband of its common carrier status. He amended it on Tuesday, adding in a long list of outlawed practices and ways to enforce the ban.

Like senate bill 460, which was approved by the senate and sent on to the assembly in January, Weiner’s bill bakes net neutrality into California’s consumer protection laws and requires state and local governments to buy broadband service from companies that follow those rules.

His definition of net neutrality is more expansive, though, adding zero rating to the list. That’s the practice of giving particular Internet traffic – an Internet service provider’s own video streams, for example – a competitive advantage by not counting it toward a customer’s data caps. ISPs wouldn’t be allowed to put up a toll gate and charge content companies for the privilege of reaching subscribers, or to charge customers different prices for the bandwidth used by different applications, or squeeze other services – think, cable channels – onto a consumer broadband connection. The FCC’s three bright line rules would also be revived: no blocking, throttling or paid prioritisation.

Proposed enforcement mechanisms include:

  • Lawsuits by consumers or the California attorney general.
  • Requiring state and local governments to buy broadband service from ISPs that follow the rules, unless there’s only one service provider available in a given area.
  • Allowing government agencies to claw back past payments if their ISP changes its mind.
  • Limiting state broadband subsidies – for infrastructure or universal service – to companies that follow net neutrality rules.
  • Specifically requiring cable and other video service companies that have a statewide franchise to comply with net neutrality requirements.
  • Taking net neutrality benefits into account when planning the state’s smart energy grid.
  • Give the some of the job of sorting out what’s allowed or not to the California Public Utilities Commission.

Weiner included a couple of big exceptions. Public safety communications could be prioritised or otherwise given a fast lane, and individual subscribers could choose to pay for restricted service, so long as “basic default service” was available and the restrictions were generic. In other words, an ISP could sell a service plan that speeds up all video traffic, but not one that only gives priority to, say, Netflix. The details of those kinds of plans – and any other service terms – would have to be fully disclosed to consumers and reviewed by the CPUC.

Some, if not all, of the bill is on thin legal ice, as a senate judiciary committee staff analysis concluded. The FCC tried to categorically preempt state law of this sort in its net neutrality repeal decision – it’ll be up to the courts to decided if it succeeded. Adding broadband obligations to statewide video franchises crosses another red line – up until now, at least, there’s been a regulatory firewall between the two kinds of services. Adding blanket broadband conditions to universal telephone service programs poses the same issues.

But those become problems only after lawmakers approve the bill and the governor signs it. There’s a long and uncertain legislative road to travel before that happens.

FCC will have to defend net neutrality repeal in San Francisco


The luck of the draw means the future of network neutrality and broadband’s status as a common carrier service will be argued in San Francisco. Credit for that is split between the California Public Utilities Commission and Santa Clara County, who filed separate challenges to the Federal Communications Commission’s decision to eliminate net neutrality rules and scrap common carrier obligations for broadband service with the ninth circuit federal appeals court.

Several other organisations filed their appeals in Washington, D.C., and a federal judicial panel randomly gave the job of consolidating and deciding the cases to the San Francisco-based ninth circuit.

Both the CPUC and Santa Clara County call the FCC’s decision “arbitrary, capricious, and an abuse of discretion” and claim that it violates both the federal constitution and federal communications law. In other words, they’re challenging the way the decision was made rather than its substance. That’s an easier – which is not to say easy – case to make. Republican commissioners rushed the decision through, and might not have dotted all the i’s and crossed all the t’s. To put it mildly, democratic commissioner Jessica Rosenworcel certainly thinks so – she called the FCC’s action a “rash decision” resulting from a “corrupt process”…

This decision and the process that brought us to this point is ugly. It’s ugly in the cavalier disregard this agency has demonstrated to the public, the contempt it has shown for citizens who speak up, and the disdain it has for popular opinion. Unlike its predecessors this FCC has not held a single public hearing on net neutrality.

There’s no shortage of Californians involved in the challenges to the FCC’s decision. California attorney general Xavier Becerra joined the appeal filed by his New York counterpart. Mozilla filed its own challenge. The Open Technology Institute and the Coalition for Internet Openness did too. Both list several Silicon Valley companies as major backers. OTI counts Google and Apple among its contributors (as well as Comcast and Charter, although I doubt this is what they signed up for).

CPUC vs. FCC, petition for review of order of agency, board, commission, or officer, 22 February 2018
County of Santa Clara vs. FCC, petition for review, 22 February 2018
Coalition for Internet Openess, petition for review, 5 March 2018
U.S. judicial panel on multidistrict litigation, in the matter of restoring internet freedom, consolidation order, 8 March 2018

FCC considers clearing a path through federal reviews for small cells


Small cell sites and similarly sized wireless facilities will be able to skip federal environmental and historic preservation reviews if, as expected, the Federal Communications Commission okays new rules at its meeting later this month. As drafted, the FCC report and order would exempt “small wireless facilities” from studies and paperwork required by the National Environmental Policy Act and the National Historic Preservation Act. Those requirements were established many years ago, when the assumption was that a cell site was a big tower with lots of big antennas – what’s called a macro cell site today.

The FCC’s definition of a small wireless facility is specific – and generous – in some respects, but vague in others. Poles could be at least 50 feet, but if taller then no more than 10% higher than existing structures. Any single antenna could be no more than three cubic feet – suitcase size – but there’s no limit on the number of antennas. Nor on the amount of other equipment that can be installed, except that it can be “no larger than necessary for the operation of the small wireless facility”.

Facilities that fall within these specs would only be exempt from federal environmental and historical reviews – the FCC carefully notes that “small wireless facilities deployments would continue to be subject to currently applicable state and local government approval requirements”. That includes the California Environmental Quality Act as well as city and county permitting criteria.

That’s just for now, though. The FCC is listening to mobile carriers and big telcos and cable companies, which dominate its broadband deployment advisory committee. They’re meeting again next month, and could finalise recommendations for preempting state and local reviews, as well as a de facto ban on municipal broadband systems. The FCC isn’t obligated to accept those recommendations, but at least one member of the commission’s republican majority – Michael O’Rielly – is positively giddy at the prospect.

Eliminating unnecessary reviews is an excellent idea, and the FCC’s draft does a good job of injecting some common sense into federal regulations. Which is what the FCC is supposed to do. State and local governments have their own jobs to do, too. The FCC should leave them to it.

FTC is everyone’s broadband cop, but don’t expect a fast response


The Federal Trade Commission can apply consumer protection laws to broadband service, even when a telephone company is delivering it. A federal appeals court in San Francisco made that clear on Monday when it rejected AT&T’s argument that the FTC’s authority doesn’t extend to telephone companies or other providers that have “common carrier” status.

An earlier ruling, made last year, would have barred the FTC from any oversight role regarding companies with common carrier status, even when the business line involved wasn’t a common carrier service. At the time, it seemed like a nonsensical decision, and the appellate judges agreed

The FTC is the leading federal consumer protection agency and, for many decades, has been the chief federal agency on privacy policy and enforcement. Permitting the FTC to oversee unfair and deceptive non-common-carriage practices of telecommunications companies has practical ramifications. New technologies have spawned new regulatory challenges. A phone company is no longer just a phone company. The transformation of information services and the ubiquity of digital technology mean that telecommunications operators have expanded into website operation, video distribution, news and entertainment production, interactive entertainment services and devices, home security and more. Reaffirming FTC jurisdiction over activities that fall outside of common-carrier services avoids regulatory gaps and provides consistency and predictability in regulatory enforcement.

The case came about because AT&T began throttling broadband speeds on iPhones with unlimited mobile data plans. The FTC sued AT&T, saying it was an “unfair and deceptive” practice. It’s the kind of enforcement action that the Federal Communications Commission assumed the FTC would take when it scrapped network neutrality rules and declared that broadband is not a common carrier service.

It’s good news to the extent that telephone companies will have to follow the same consumer protection rules as other ISPs. But the case also highlight a major problem with giving the enforcement job to the FTC. Unlike the FCC, the FTC doesn’t directly enforce anything – it has to rely on federal courts, which takes a lot of time. The sin AT&T is accused of committing happened in 2011 and the FTC didn’t sue until 2014. It’s now 2018, with no end in sight.

FCC broadband speed standard isn’t “advanced” anymore


Don’t be fooled. What the Federal Communications Commission labels “advanced telecommunications capability” is just the basic minimum broadband speed you need to access online services today. It’s advanced in the same sense that London’s New Inn, built in 1810 to replace the original, is new: it seemed that way at the time.

The concept of advanced online services was introduced into federal policy in 1996, when the U.S. congress last overhauled federal telecoms law. That’s when 256 Kbps DSL service was a dream beyond the reach of all but a lucky few. Most of us were happy if we had a 56 Kbps modem and a clean enough dial up circuit to use it.

So “advanced” means something better than email and text-based websites. The 1996 law, and consequently the FCC, defines “advanced telecommunications capability” as “high-speed, switched, broadband telecommunications capability that enables users to originate and receive high-quality voice, data, graphics, and video telecommunications using any technology”.

By that definition, the FCC’s 25 Mbps download/3 Mbps upload speed standard for advanced capability doesn’t completely make the grade for today’s applications, services and content. You can watch a 4K video stream – the current benchmark for “high quality” video – with 25 Mbps service. You need a steady 15 Mbps data stream, which a connection advertised at 25 Mbps has a good chance of delivering reliably. But if someone else in your home wants to watch another 4K program, or even send and receive some high-quality data and graphics, it’ll choke.

You can’t originate 4K vido with a 3 Mbps upstream connection, though. All that will get you is standard definition video – the old school, 525-line analog standard we had in the 1990s, before digital high definition formats went mainstream.

But for day to day business and entertainment purposes, 25/3 service is arguably sufficient. Service at 10 Mbps down/1 Mbps – the FCC’s limit for subsidies – won’t cut it. And 6 Mbps down/1 Mbps up – the lower standard set last year by the California legislature at the behest of AT&T, Frontier Communications, Comcast and friends – doesn’t even come close.

The excuse they used was that 25/3 speeds are “aspirational”. The FCC’s latest, bipartisan endorsement of that standard reaffirms it’s the minimum we need in today’s world. Arguments to the contrary are self serving nonsense.

FCC officially publishes decision reversing net neutrality


The game clock is now running on the Federal Communications Commission’s decision to reverse broadband’s status as a common carrier service and end network neutrality rules. Sorta. The decision approved by commissioners in December was published in the Federal Register yesterday. That means court challenges can begin – an earlier appeal by state attorneys general was largely symbolic and presumably will be refiled. There’s a ten day procedural window for everyone to pile on in the federal appeals court of their choosing, after that the challenges will probably, but not certainly, be consolidated into a single case that’ll be heard in Washington, D.C. Final deadline to file an appeal is two months out. You can find the details of how it works in an excellent blog post by Public Knowledge’s Harold Feld.

It will be an uphill battle to convince the courts that the FCC made the wrong decision. When congress gives an agency the job of choosing among policy options, past court rulings – including in the cases brought against the FCC’s 2015 net neutrality decision – generally defer to that agency’s expert judgement. There’s a stronger argument to be made that the FCC didn’t follow proper procedures in making its decision this time around, and that’s likely where the main legal battle line will be drawn.

Publication in the Federal Register also means that congress has two months to exercise its authority to overturn the FCC’s decision. There might be enough support for doing so in the U.S. senate, but agreement by the house of representatives is a long shot. The necessary concurrence by president Donald Trump is an even longer shot, to say the least.

The catch is that we still don’t know when the FCC’s decision will take effect – for what it’s worth, broadband is still a common carrier service and theoretically providers still have to abide by the erstwhile bright line rules: no blocking, no throttling, no paid prioritisation. The hammer won’t come down until after the white house signs off on some of the details and posts a second notice in the Federal Register.

FCC’s “Restoring Internet Freedom” order as published in the Federal Register, 22 February 2018

Mobile isn’t a replacement for wireline broadband, says FCC once again


The Federal Communications Commission is maintaining its hard distinction between fixed and mostly wireline, and mobile broadband service. In its 2018 Broadband Deployment report, the FCC reaffirmed that the two are complementary and not substitutes for each other…

We disagree with those that argue that mobile services are currently full substitutes for fixed service. Both fixed and mobile services can enable access to “information, entertainment, [and] employment options,” but there are salient differences between the two technologies. Beyond the most obvious distinction that mobile services permit their users mobility, there are clear variations in consumer preferences and demands for fixed and mobile services. Each clearly provides capabilities that satisfy the statutory definition of advanced telecommunications capability, and are important services that provide different functionalities, tailored to serve different consumer needs.

Not all commissioners concur with that disagreement. A vociferous dissent was posted by republican commissioner Michael O’Rielly. He made the amazing claim that people prefer slower, capped service…

Consumers, especially in the less affluent and younger populations, are willing to trade speed for flexibility…given the choice between gigabit speed wireline broadband and slower, data-capped wireless service, consumers that I have met with and providers deploying service in neighborhoods will make clear that the wireless service is preferable – by far.

The research that’s been done tells a different story, though. According to the latest survey by the California Emerging Technology Fund, 18% of Californian households are connected to the Internet by mobile services alone – not because it’s better, but because it’s what they can afford. The smartphone-only segment is heavily weighted toward households with incomes of $20,000 a year or less. When subsidised lifeline programs and free or very cheap phones are factored in, mobile service is significantly cheaper than buying a DSL subscription and a cheap computer.

Some people do choose to rely on mobile service alone, but when cost is not such an issue it’s a small proportion. In households with annual incomes greater than $100,000, 81% have fixed connections and get online via a computer, 10% have no in-home service at all and only 9% opt for mobile-only service. When people have a choice, they choose fixed service. By far.

Hey, we’re doing a great job deploying broadband, FCC report claims


The Federal Communications Commission (or at least its republican majority) believes that “advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion”. That’s the bottom line conclusion of the 2018 Broadband Deployment report, which was released on Friday.

Writing in Ars Technica, John Brodkin does a great job of unpicking the report’s rhetorical gymnastics, which simultaneously assign credit for successes to current FCC policies and blame for any failings on the previous democratic majority. The problem is that all of the data is from 2016, before Donald Trump became president. Worth a read.

Overall, the FCC’s data shows that 92% of U.S. residents have access to fixed terrestrial service, wired or wireless, that meets the 25 Mbps down/3 Mbps up advanced services standard, but there’s a sharp difference between urban communities, where availability is at 98%, and rural areas, where it’s only 69%. It only gets worse as speeds increase – at 50 Mbps down/5 Mbps up, urban coverage slips slightly to 97%, but falls to 64% for rural residents.

On the other hand, the FCC believes that there is no such divide when it comes to basic mobile 4G service. Its figures show that urban coverage at 5 Mbps down/1 Mbps up is at 100% and rural availability is 98%. The gap widens, though, when the mobile benchmark is 10 Mbps down/3 Mbps up – 91% of urban residents can get that level of service, versus only 70% in rural areas.

On one measure, urban and rural residents are on an even playing field. The per capita income of people who have both in-home and mobile Internet access (at 25/3 and 5/1 respectively) is higher than those who don’t – $31,000 versus $25,000, and there’s not difference when it’s broken out by rural and urban residents.

The planning-optional Trump administration has no plan to nationalise U.S. telecoms


The proposal to build a national, federally owned and operated 5G network grabbed a lot of attention early yesterday morning – it was a better wake-up jolt than a double espresso – but as the day went on it became clear that it was an out of the box analytical exercise by low level staff and not an actual plan. Axios broke the news on Sunday night, posting a slide deck and white paper prepared by national security staff that made the argument for clearing off 500 MHz of spectrum in the 4 GHz range and deploying a coast-to-coast, made-in-America 5G network that’s presumably more secure than off the shelf infrastructure made abroad.

The core argument was that China has the lead in 5G and artificial intelligence technology, and the U.S. needs to do something about it. Side benefits included quicker rural broadband upgrades – the paper assumed the network could be completed in three years – and an end to city by city bickering over permits and access to right of ways and poles.

Industry reaction largely amounted to huh? AT&T’s corporate statement urged gratitude for “multi-billion dollar investments made by American companies”, but forgot to mention the multi-billion dollar subsidies private telecoms companies are getting from federal and state governments. Weird.

The most robust defence of the telecoms industry came from the Federal Communications Commission. Four out of the five commissioners slammed the plan – Jessica Rosenworcel declined to rise to the bait.

But a nationalised wireless system can’t be ruled out in an administration that lurches from one random policy to another. The project was touted as an information age version of the Interstate highway system that was launched in the 1950s and largely completed within 25 years. It was pushed through on national defence grounds by president Dwight Eisenhower, who had been thinking about a unified federal highway network since 1919, when he spent two months in an Army convoy averaging 6 miles an hour, travelling from Washington, D.C. to San Francisco. Maybe president Donald Trump had a similar seminal experience: trying to tweet from the back nine at Mar-a-Lago perhaps?

California senate votes for net neutrality


The California senate voted 21 to 12 earlier today to approve senate bill 460, which would reinstate network neutrality rules in California, in the unlikely event federal courts declare the FCC’s decision to scrap those regs to be arbitrary, capricious and an abuse of discretion. It was mostly along party lines, with Richard Roth (D – Riverside) voting no, but no republicans voting yes and several senators on both sides sitting it out. Next stop is the California assembly.