Tag Archives: public policy

CPUC’s cable franchise renewals remain private and privileged

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Cable companies won’t be held publicly accountable for their business practices or service levels by the California Public Utilities Commission. That’s the result of a unanimous vote by commissioners on Thursday.

The CPUC’s semi-independent office of ratepayer advocates (ORA) asked the commission to revisit a 2014 decision that established a perfunctory, closed door review of statewide video franchise renewals. Cable lobbyists sweet talked California lawmakers into ending local franchise authority in 2006, and replacing it with a single, statewide process run by the CPUC. But they gamed the bill – the Digital Infrastructure and Video Competition Act, or DIVCA as it’s known – so that there’s very little they need to do to get a statewide franchise, and even less they need to show the CPUC when it comes up for renewal every ten years.

The way the CPUC interpreted its responsibility in 2014, the only avenue for local governments or citizens to object was to take a cable company to court and win. Only if a cable company doesn’t comply with a court order by the time their ten year franchise rolls around for renewal, will the CPUC listen to a public complaint. ORA can go a little further and review confidential material, but if they find something wrong, all a cable company has to do is resubmit the application.

Otherwise, the CPUC has a chummy conversation with the cable company and rubber stamps the renewal.

Even though he issued the decision that was approved on Thursday, commissioner Clifford Rechtschaffen offered a sliver of hope that maybe there’s a way that the CPUC can listen to someone other than cable company lawyers and lobbyists…

I do recognise that ORA has raised a legitimate question about how it can effectively advocate during this franchise renewal process. So I look forward to learning more about the way that ORA can do this and bring legitimate concerns about issues within our jurisdiction to the Commission’s attention.

It’s only a sliver, though. Rechtschaffen expressed his sympathy in a narrow, legalistic way, which is how the CPUC has viewed its duties under DIVCA. In order to do anything more, it will have to change its thinking and claim greater responsibility.

Frontier’s two buck suck tests FCC’s consumer protection claims

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Frontier Communication’s broadband customers might want to take up the offer of fierce consumer fraud protection that the Federal Communication Commission made as it issued its network belligerence decision this week. They thought they were getting broadband service at a stated price, but Frontier surprised them by adding a $2 “Internet infrastructure surcharge” to their bills. Because it could.

The charge is an attempt by Frontier to advertise a low price for broadband service, while charging a higher one. According to a story by Karl Bode in DSL Reports, a Frontier representative told a customer that “this fee is to defray some of the costs of maintenance of the local network”. You know, the costs you thought you were paying for when you signed up for service. Silly you.

But fear not. The FCC has kicked the consumer protection can over to the Federal Trade Commission. As chairman Ajit Pai put it

We empower the Federal Trade Commission to ensure that consumers and competition are protected. Two years ago, the [net neutrality order] stripped the FTC of its jurisdiction over broadband providers. But today, we are putting our nation’s premier consumer protection cop back on the beat. The FTC will once again have the authority to take action against Internet service providers that engage in anticompetitive, unfair, or deceptive acts.

Well, it will if a federal appeals court reverses an earlier decision and allows the FTC to go after telcos and other companies that operate as common carriers under FCC authority.

Assuming it can, though, the FTC will have no shortage of deceptive Internet service advertising claims to investigate. Comcast is already embroiled in a San Francisco court case over similar practices. Anyone who has tried to figure out how much AT&T or Charter Communications or any of the other big ISPs charge per month for broadband service knows that pain. We’ll find out soon enough whether the FTC intends to do anything about it.

The Internet goes from ping to Pong as big cable, telcos take control

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Pay to play.

A brief pause for a bomb threat aside, yesterday’s Federal Communications Commission vote to end broadband’s common carrier status as a telecommunications service, and net neutrality rules with it, went as expected. The three republican commissioners voted in favor of the change, the two democrats voted against and all five made speeches explaining why they were voting the way they always said they would vote (links below). There was no indication that the final order approved yesterday differed significantly – or at all – from the draft published three weeks ago.

Commissioner Jessica Rosenworcel, a democrat, warned of the consequences she believes will come

As a result of today’s misguided action, our broadband providers will get extraordinary new power from this agency. They will have the power to block websites, throttle services, and censor online content. They will have the right to discriminate and favor the internet traffic of those companies with whom they have pay-for-play arrangements and the right to consign all others to a slow and bumpy road.

Now our broadband providers will tell you they will never do these things. They say just trust us. But know this: they have the technical ability and business incentive to discriminate and manipulate your internet traffic. And now this agency gives them the legal green light to go ahead and do so.

There’s already a red flag warning that Comcast, the biggest Internet service provider in the U.S. is preparing to move out of its self declared net neutral zone, something democratic commissioner Mignon Clyburn called out in her speech. In a blog post Wednesday, Comcast’s chief corporate lobbyist fell all over himself promising “all of the benefits of an open Internet today, tomorrow, and in the future”, but then offered a weasel-worded explanation of what that means. What it doesn’t mean is making a categorical promise to not sell fast lanes to content providers willing to pay, and consigning the rest to the slow lane. If you don’t read his words carefully, you might think he did. But he didn’t.

If that happens, there’s not much anyone can do about it. ISPs will have to abide by the same general consumer protection and anti-trust rules as any other kind of company, but broadband-specific standards of behavior are gone and the FCC is handing off its specialist enforcement responsibilities to the ordinary cops on the beat. Which will be sufficient, according to republican commissioner Brendan Carr

Before the FCC stripped it of jurisdiction, the FTC—the nation’s most experienced privacy enforcement agency—brought over 500 privacy enforcement actions, including against ISPs. By reversing Title II, consumers get those privacy protections back…

Federal antitrust law will protect against discriminatory conduct by ISPs. As a former Obama Administration FTC Chairman recently said, this is a “formidable hammer against anyone who would harmfully block, throttle or prioritize traffic"…

State consumer protection laws will apply and state attorneys general can bring actions against ISPs. These authorities will provide another strong set of legal protections against unfair business practices by ISPs.

There will be a delay, likely a couple of months, before the order officially takes effect. Court challenges will come, but are by no means certain to succeed.

Downloads

Draft: In the Matter of Restoring Internet Freedom, Declaratory Ruling, Report and Order, and Order, 22 November 2017
Press release: FCC acts to restore Internet freedom, 14 December 2017
Oral statement of chairman Ajit Pai, 14 December 2017
Dissenting statement of commissioner Jessica Rosenworcel, 14 December 2017
Statement of commissioner Brendan Carr, 14 December 2017
Oral dissenting statement of commissioner Mignon Clyburn, 14 December 2017
Oral statement of commissioner Michael O’Rielly as prepared for delivery, 14 December 2017

“The fix was already in”: net neutrality ends on party line FCC vote

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By a vote of three republicans to two democrats, the Federal Communications Commission declared that broadband is not a telecommunications service this morning. Broadband’s common carrier status is gone and network neutrality rules have been scrapped. If the FCC follows recent practice, the full text of the decision will be released in the next few days, but the draft was published three weeks ago and there’s no indication at this point that any significant changes were made. It was a meeting filled with emotional rhetoric on both sides, with democratic commissioner Mignon Clyburn declaring “it is abundantly clear why we see so much bad process with this item because the fix was already in”. It was interrupted by a security alert while chairman Ajit Pai was making his remarks, but commissioners returned, Pai finished and the vote was taken.

California broadband decisions hide in D.C.’s shadow today

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The big broadband news will be coming from the FCC later this morning (although there won’t be much, if anything, that’s actually new). But the California Public Utilities Commission is also meeting today, with a handful of broadband-related issues to decide.

One of the resolutions up for a vote would slap down a request from the CPUC’s office of ratepayer advocates to take another look at how cable companies are (not) held accountable under California’s statewide franchising law. A cable company’s statewide franchise comes up for review every ten years, but it’s done behind closed doors and renewal is effectively automatic. ORA wanted the CPUC to reconsider that gift, but did not convince the commissioner who wrote the draft – Clifford Rechtschaffen – that there was good reason to do so.

Another draft resolution begins the process of bringing the California Advanced Services Fund (CASF) broadband subsidy program into line with changes dictated by assembly bill 1665, which was signed into law earlier this year. AB 1665 gave AT&T and Frontier Communications a privileged place at the head of the subsidy line, and the resolution that’s likely to be approved today fills in some of the details, but leaves hard questions for later. Like whether Frontier or AT&T should be held accountable for making false promises about where and how they’ll upgrade broadband infrastructure.

There are also three housekeeping items, involving the technicalities of the California Advanced Services Fund (CASF). One reinstates a tax on phone bills – also authorised by AB 1665 – to collect the money that’ll be funnelled to Frontier and AT&T. The other two are about due diligence – financial reporting rules for regional broadband consortia and waiving a performance bond requirement for a grant recipient that gained CPUC certification instead.

There’s not much suspense about the outcome today, either in Washington, D.C. or in San Francisco. All five broadband items are on the CPUC’s consent agenda and, absent objection from a commissioner, will slide through without discussion.

No last minute reprieve, no surprises as FCC heads for net neutrality vote

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There seems no stopping the Federal Communications Commission’s republican majority plan to end broadband’s status as a common carrier service and, as a result, kill network neutrality obligations for service providers. The decision is scheduled for tomorrow morning, and FCC chair Ajit Pai has either ignored or explicitly rejected the three main arguments for delaying a vote.

One of those arguments should be ignored. Much has been made about the spam submitted along with substantive comments on the issue. It appears that people on both sides of the issue have hacked (in the honorable sense of the word) the FCC’s online comment system. That’s no big deal. There are enough substantive comments, on both sides, to inform commissioner’s deliberations, even if they were actually deliberating rather than digging in to well established, partisan positions. On both sides.

Among the substantive comments is a definitive rebuttal signed by people who really know what they’re talking about. They include Vint Cerf, Tim Berners-Lee, Steve Wozniak and a bunch of others you probably haven’t heard of but likewise invented the stuff that the Internet depends upon and that FCC chair Ajit Pai pretends not to understand. They should be taken seriously but won’t. At least not unless the federal courts decide to sort out the political arguments. Then, what they say will matter hugely.

The third argument involves the ninth circuit federal appeals court, based in San Francisco. It’s deciding whether companies that are reckoned to be common carriers, like, say, AT&T, should be subject to any consumer protection rules at all, regardless of whether the particular service involved – broadband, for example – is specifically classified that way. If the ninth circuit agrees with a previous ruling and exempts telecoms companies from consumer protection oversight, then tomorrow’s inevitable decision will free big telecoms companies from any rules at all.

The draft decision dismisses that possibility, and the FCC released a draft memorandum of understanding with the Federal Trade Commission on Monday that assumes the problem away. The draft MOU states the obvious – that the FTC would police general violations of consumer protection law – and talks about information sharing between the two agencies, in a hand waving, we’re all on the same team sort of way.

There’s no knowing which way the appeals courts or, eventually, the federal supreme court will rule. Delaying the decision until the court system resolves basic, underlying questions would be prudent, but that’s not in the cards either: tomorrow, the FCC will end net neutrality and other broadband common carrier obligations on a party line three-to-one vote.

PG&E must put all its fiber on the market, not just the bits it, or others, want sold

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PG&E agrees with many of the restrictions that the California Public Utilities Commission’s office of ratepayer advocates (ORA) wants to put on its proposed telecommunications business plan. Without knowing the details of PG&E’s 2,600 mile fiber network in northern California, it’s impossible to know whether that climb down is a strategic retreat or a concession rendered meaningless by the simple facts of its infrastructure or business plan.

The CPUC is reviewing PG&E’s application for certification as a telephone company. Over the years, PG&E has built up an inventory of fiber optic assets, either because it had internal communication needs or because another telecoms company swapped fiber strands for access to PG&E’s electricity transmission and distribution infrastructure. It wants permission to put those assets on the market, either as simple dark fiber or the medium for lit transportation services.

ORA wants to ban PG&E from “using fiber lines installed in the power zone” of utility poles for its dark fiber and lit service business. The power zone is the uppermost area of poles, where wires used for electric service are installed. The area below it, where cable and telephone companies attach their wires, is the communications zone. But that’s only on poles used for distribution of electricity – low voltage, last mile service in telecoms terms. Poles used for transmission of electricity – middle mile, in other words – don’t have a communications zone. Any fiber installed on transmission infrastructure is, by definition, in the power zone.

The conditions proposed by ORA are in the context of utility poles used “for network distribution”. If what ORA wants and what PG&E is agreeing to only involves fiber installed on poles used for distribution, and not on transmission poles, or conduit of any kind, then it might be no big deal. PG&E might not have a significant amount of fiber in the power zone of local distribution poles. That’s an expensive proposition, compared to installing fiber in the communications zone, where safety concerns are fewer and construction costs are less. So it might not make a difference either to PG&E’s business plan or to its ability to be a competitive counterweight to telecoms incumbents with monopoly business models.

But if those conditions affect more than a trivial amount of last mile fiber, or in any way restrict PG&E’s ability (or willingness) to sell access to middle mile routes on its vast transmission infrastructure – the crown jewel of its network – then the CPUC should reject them. Instead, the CPUC should treat PG&E as the incumbent it is: all of its fiber should go on the market. Otherwise, allowing it to act as a telecoms company will not “enhance competition in the public interest”, as PG&E claims.

PG&E rebuttal testimony regarding its CPCN application, 8 December 2017

CPUC review of PG&E telecoms plan must focus on big picture, not narrow interests

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Three groups filed testimony with the California Public Utilities Commission opposing PG&E’s plan to put its 2,600 miles of fiber on the market, as dark strands and for lit service (links are below). Caltel, a lobbying group for telecoms resellers – CLECs – offered quibbling and self-interested comments. The two others – the CPUC’s office of ratepayer advocates and TURN, an old school utility consumer advocacy organisation – urged the CPUC to either reject the plan or cripple it with nonsensical restrictions, on the basis of an outdated and narrow view of what utility regulation is all about.

For TURN and ORA, it’s about micromanaging PG&E’s fiber in the same way as its regulated, monopoly electric and gas business. They give no thought to the benefits of having an independent source of dark fiber or lit service in northern California. ORA and TURN make one dimensional arguments about what might or might not be fair to PG&E’s electric customers and, remarkably, to big incumbent telecoms companies, while ignoring the fact that electric consumers are also broadband and telephone subscribers. Protecting broadband companies that exercise unregulated monopoly and duopoly control over prices and products from PG&E’s limited competition will only hurt consumers.

Dark fiber is a critical resource for independent, competitive telecoms operators. Thanks to the CPUC’s reliance on TURN and ORA – instead of exercising its own initiative – CenturyLink will be rolling Level 3 Communications’ previously independent dark fiber into its monopoly-centric business model over the next two years. Ironically CenturyLink controls a significant amount of the capacity on PG&E’s fiber routes, via its acquisition of Level 3-owned IP Networks. The CPUC would not be serving the public interest if it protected CenturyLink’s monopoly by locking PG&E out of the telecoms business, or restricting its ability to fully use the fiber it owns.

The CPUC has the responsibility to maximise value, quality and availability across a range of utility services for Californians, individually and for the economy as a whole. It should fulfil its responsibility by independently evaluating all the pluses and minuses of PG&E’s telecoms plan, and not relying solely on the arguments of narrow interests.

Caltel testimony regarding PG&E CPCN application, 22 November 2017
Office of Ratepayer Advocates testimony regarding PG&E CPCN application, 22 November 2017, part 1
Office of Ratepayer Advocates testimony regarding PG&E CPCN application, 22 November 2017, part 2
Office of Ratepayer Advocates testimony regarding PG&E CPCN application, 22 November 2017, part 3
TURN testimony regarding PG&E CPCN application, 22 November 2017

End of net neutrality means more corporate control of Central Coast media and speech

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I was asked to write a piece on net neutrality from a Central Coast perspective, for Santa Cruz TechBeat, and thought it might be worth reposting here, with some minor updating…

The Federal Communications Commission is on a fast and narrow track to repeal network neutrality rules and declare broadband industry regulation off limits. The three republican commissioners say they’ll vote on Thursday to scrap the broadband regulatory regime enacted during the Obama administration, also on a 3 to 2 party line vote.

It’s a particularly important decision for people on the Central Coast, where the broadband market is dominated by the three biggest providers – Comcast, Charter and AT&T – with the greatest incentive to use their control of the Internet’s plumbing to send more of their, um, stuff your way.

Comcast, which owns NBC/Universal, has already backed away from the net neutrality pledge it made while ever so humbly (and unsuccessfully) sought permission to add Time Warner and Charter cable systems to its domain in 2014. AT&T has a similar non-promise on the table, and can be expected to stick to it while it tries to buy Time Warner media and content companies. After that, all bets are off. Same with Charter, which is controlled by Liberty Media and likewise tied to content ownership.

The top level issue is whether broadband is a telecommunications service or an information service. It’s a telecommunications service and subject to common carrier style regulation if it involves “the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received”, as federal law puts it. Otherwise, broadband is an information service and federal, state and local agencies, and particularly the FCC and California Public Utilities Commission, have very limited authority over it.

Twenty years ago, when Internet access was inextricably tied to the email, chat room, portal and home page features offered by the likes of AOL and CompuServe, the FCC decided it was an information service and left it alone. Looking back, it was both the correct decision and a good one.

Times have changed. Simple Internet access is now a discrete service, typically offered on a standalone basis with informational services strictly optional. The market, at best, is a duopoly collapsing into a monopoly – Comcast and Charter Communications account for 48% of U.S. wireline (and fixed wireless) broadband subscribers, and their share is growing. The next three biggest ISPs – AT&T, Verizon and CenturyLink – muster only a 28% market share, but that’s enough to put more than three-quarters of U.S. broadband subscribers in the hands of just five companies.

Fear of that kind of control led to the first attempt at network neutrality rules in 2010. Then, as now, those rules said that ISPs had to treat every bit sent or received by a subscriber equally. Comcast couldn’t, say, choke off another video distributor, like Netflix or a competing network, like CBS.

It didn’t last. A federal appeals court told the FCC that if it wanted to regulate broadband, it had to do so using common carrier rules – under Title II of federal communications law, as the jargon goes. Which meant reclassifying Internet access as a telecommunications service.

After intensive industry lobbying and partisan bickering, fulsome public comment and a viral John Oliver rant, a democrat-majority FCC obliged in 2015, and net neutrality rules were back. Then Donald Trump was elected, and a republican majority took over at the FCC, promising to take “a weed whacker” to Washington’s thick regulatory underbrush.

So what can we do?

There was a protest planned at the Verizon store on 41st Avenue in Capitola last week. (FCC chair Ajit Pai used to work for Verizon, so they’re the punching bag of choice). The Central Coast’s congressional delegation is solidly democratic, and most – senators Diane Feinstein and Kamala Harris, and representative Anna Eshoo – have spoken out against the FCC’s plan to end net neutrality. Republicans aren’t paying much attention, but even so, expressing thanks (or objections, if you don’t agree) is a way of adding your voice to the debate.

And go online. Social media, virtual protests and more are tools we have to made ourselves heard, without fear of corporate interference.

For now.

App challenge: what if you knew an earthquake will hit 5 seconds from now?

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The biggest natural disaster threat to Californians comes from earthquakes, wild fires notwithstanding. One quake can take out more homes, businesses and infrastructure in a few seconds than all of this year’s fires combined. There’s no scientifically valid way of predicting earthquakes, so most people assume they strike without warning.

Not so. Earthquakes run for many seconds, even minutes. The first vibrations that ripple out are called P-waves, which seldom do damage but carry critical information about location and intensity several seconds ahead of the big shake. The U.S. Geological Survey and west coast research universities have a pilot program in place to monitor P-waves, and send out alerts. It’s in the early stages right now, and only a few agencies are connected. BART, for example, is using it to slow down trains before the main force of an earthquake hits.

The next step is to figure out how to push that information out to the public in time for it to be useful. The City of Los Angeles has a request for proposals out, looking for a developer who can develop a mobile app that’ll deliver meaningful and useful information to the public within ten seconds of the first alert from the USGS system. The first step will be to develop an app that can beta tested by city employees. It’s intended to be an open source project. The code has to be published on GitHub and published on an open source platform.

The technical work is the easy part. The harder question is, what will people do with the information? USGS says that “the warning time would range from a few seconds to a few tens of seconds”. If ten seconds or more are eaten up processing and delivering the alert, and a few more seconds are needed for people to pick up and read their phones, there’s not much time to react and take useful action. Solving that problem will be the truly difficult, and interesting, challenge.

City of Los Angeles Informal Procurement: Los Angeles Earthquake Early Warning Mobile Application