Muni broadband can defend net neutrality, but winning isn’t guaranteed

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Net neutrality and municipal broadband are two separate issues that overlap in a couple of ways. First, there’s an assumption that muni broadband systems will abide by net neutrality principles, even if not required (but there’s a bill in the California legislature, AB 1999, that would require it). It’s an easy pledge to make now, but it’s not a certainty that muni systems could or would swim against the financial tide if the economics of the business changes significantly.

And the economic structure of the Internet will continue to change, as it has for the past thirty years. Small broadband providers, muni or not, only control traffic up to a certain point. Traffic could be shaped, throttled, blocked or prioritised on the other side of that point, reducing the value of a neutral last mile. Another consideration is the value of privileged access to users, particularly by content providers that rely on advertising. Sharing that revenue could make it possible for big, non-neutral incumbents to drive down the retail price of Internet service, making it impossible for independents to compete on the basis of virtue alone.

Another area where net neutrality and muni broadband overlap is on the political side. The big incumbents – cable and telco – lobby hard against muni broadband in both Sacramento and Washington. Those same lobbyists are working against net neutrality, and paying large amounts of money to legislators who are involved with both issues. There’s a similar, parallel effort to influence state and federal regulators.

There isn’t the same unity – throw weight, I’d call it – on the other side. There’s a core of people who care equally about freedom to use the Internet and freedom to provide the service, but for the most part advocates are involved with one issue or the other. When end-of-the-session horse trading begins, it’ll be much easier for cable’s and telco’s unified, deep pocketed lobbying fronts to cut a deal. Whether their passion is muni broadband or net neutrality, separate, single issue groups will not be happy with the result.

California net neutrality bill bends to telco, cable wishes

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It would still ban blocking, throttling, paid prioritisation and some kinds of zero rating, but a California senate committee has pulled some of the sharper enforcement teeth out of a bill to reinstate network neutrality rules. With one exception, though, definitions of banned and permitted practices remain the same.

Senate bill 822 was approved by the senate energy, utilities and communications committee last week on a party line vote, with the condition that undisclosed changes, negotiated behind closed doors, would be made. Those amendments were finally released, and the result is fewer net neutrality enforcement options.

The changes are significant because the headline enforcement mechanism – consumer protection lawsuits by the California attorney general – stands a good chance of being overturned by federal courts. It’s the geekier enforcement methods, with a firmer grounding in state authority, which have better odds of survival. So the fewer of those that in the bill, the likelier the end result will be empty words that have little or no effect on the big Internet service providers, such as AT&T, and Comcast and Charter Communications. Which is why they crowded into the back rooms where their California senate friends watered down the bill.

The chopped sections include…

  • Requiring projects built with Californian broadband and telephone subsidies to abide by net neutrality principles.
  • Putting net neutrality obligations into statewide video franchise awards or renewals for both cable and telephone companies.
  • Bringing energy regulators into the net neutrality loop, as part of California’s smart grid initiatives, with particular direction to assess the impact of net neutrality practices, or the lack thereof, on “resource management and grid reliability”.
  • Designating the California Public Utilities Commission as a net neutrality watch dog.
  • Requiring ISPs to notify the CPUC if they try to take advantage of exceptions written into the bill.

One other enforcement tool is still in SB 822. State agencies and local governments would only be able to purchase broadband service from ISPs that follow net neutrality rules, except in areas where there’s only a single provider. It parallels net neutrality language approved in other states, and is reckoned to have the best chance of surviving court challenges.

The changes also redefine a net neutrality safe harbor. Previously, SB 822 allowed Californian ISPs to offer “different types of technical treatment” as a service to end users, who could freely apply it to content or applications of their choice (and they, and not third parties, would pay for it). That’s been changed to “different levels of quality of service”, with the caveat that a basic service level must be offered to all and optional service levels cannot degrade it. That’s a more subjective definition, arguably one that’s more understandable to consumers, but it could also give ISPs more wiggle room.

SB 822 is up for another hearing in the senate judiciary committee tomorrow.

Big incumbents tell CPUC to tilt California broadband subsidies in their favor

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Four Internet service providers, all of whom have participated at one time or another in the California Advanced Services Fund (CASF) infrastructure subsidy program, offered their ideas on how that money should be managed and allocated. So did a lobbying front representing cable companies – including Charter Communications, Comcast and Cox Communications – which have never participated. The big boys – AT&T, Frontier Communications and the cable industry – want grants on their own terms, while blocking competitors that might threaten their monopoly business models.

AT&T offered a long list of suggestions to the California Public Utilities Commission. Some had merit, for example including latency as an evaluation criterion for project funding and measuring project reach by total housing units, whether occupied or not. Others were self serving. AT&T heartily endorsed the idea of limiting project proposals to once a year – great for a large, bureaucratic organisation like itself (or even a medium sized one like the CPUC) but hellish for nimble competitors. It also wants the CPUC to not do any ground truthing and simply rely on AT&T’s service claims. Given AT&T’s inaccurate reporting, that would hardly be a benefit to communities that AT&T doesn’t consider to be high potential.

Frontier Communications essentially told the commission that it should just give it as much money as it wants, on demand. After all, what’s a piggy bank for if you can’t whack it with a hammer any time you’re running short?

Geolinks wants the commission to give wireless infrastructure proposals the same weight as fiber projects, arguing nonsensically that they “will likely offer the same speeds”. It’s a wireless Internet service provider that hasn’t applied for CASF grants but did try unsuccessfully to jump in via the commission’s right of first refusal process.

Race Communications has received several CASF grants and understands the process well, including the endless opportunities for incumbents to game the system and delay, or even kill, competitive projects. It makes several useful recommendations to streamline the CASF program so that it doesn’t favor companies, such as AT&T and Frontier, that have all the lawyers and lobbyists they need to create mischief.

The California Cable and Telecommunications Association (CCTA), which speaks for Comcast, Charter and Cox, among other cable companies, wants to slow the grant approval process down, opposing expedited reviews. Its major members have refused to participate in the CASF program in the past, because of the regulatory danger they perceive. Grants for independent middle mile projects, which are largely banned now by state law because of its own lobbying efforts and those of AT&T and Frontier, also drew CCTA’s attention. It wants the CPUC to make sure none slip through any loopholes.

The full list of CASF-related comments are here. The CPUC will accept rebuttals, the deadline is 1 May 2018.

Police surveillance tech disclosure considered by California legislature

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If a police department in California wants to use facial recognition software, or scrape social media platforms looking for evidence of criminal behavior, it would need to disclose the practice and, where practicable, get advance permission from its city council, if a bill working its way through the legislature makes it into law. Senate bill 1186, introduced by senator Jerry Hill (D – San Bruno), would require cities to decide on and publish policies for using “surveillance technology”, which it defines as…

Any electronic device or system with the capacity to monitor and collect audio, visual, locational, thermal, or similar information on any individual or group. This includes, but is not limited to, drones with cameras or monitoring capabilities, automated license plate recognition systems, closed-circuit cameras/televisions, International Mobile Subscriber Identity (IMSI) trackers, global positioning system (GPS) technology, software designed to monitor social media services or forecast criminal activity or criminality, radio frequency identification (RFID) technology, body-worn cameras, biometric identification hardware or software, and facial recognition hardware or software.

Any type of use would have to get blanket approval in advance, although after that it wouldn’t have to be reviewed on a case by case basis. If something unforeseen comes up, involving “danger of death or serious physical injury”, the cops could do whatever they need to do, but would have to disclose it later.

The bill had two hearings, in front of the California senate’s public safety and judiciary committees, where it was approved and sent on to the appropriations committee, with undisclosed amendments pending. Predictably, lawyers are in favor of it and police organisations are opposed. According to the public safety committee’s analysis, there have been 12 past attempts at similar legislation in recent years. Two, also carried by Hill, involving automatic license plate readers and mobile phone intercepts are now law. Most of the rest died in the legislature, although three made it to governor Jerry Brown’s desk and were vetoed. Given the sweeping scope of the current bill, a similar fate seems likely.

San Francisco muni FTTP short list is down to three choices

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The City and County of San Francisco is still tight-lipped regarding details of its $2 billion fiber-to-the-premise project, but its latest cryptic update indicates that the scheduled one-on-one interviews with potential bidders are complete and the first cut was made.

Thanks to a tip from a kind reader, I checked the City’s purchasing website and found this notice, dated yesterday, 19 April 2018…

Notice of Pre-Qualified Bidders for Citywide Fiber to the Premises Network, Lit Fiber and Wi-Fi Services RFQ

The City has completed its evaluation of Citywide Fiber to the Premises Network, Lit Fiber and Wi-Fi Services RFQ. Respondent Teams that are selected and placed on the pre-qualified bidders list are not guaranteed a contract. The following Respondent Teams have been selected:

Bay City Broadband Partners
FiberGateway
Sonic Plenary SF Fiber

Protests of the Pre-Qualified Bidders for this RFQ must be received…no later than 12:00 P.M. (PST) on April 26, 2018.

Before the interviews, the City acknowledged that four groups were in the hunt. This latest list is missing Golden Gate Broadband Partners, of which no public information or even basis for speculation exists. Same story with FiberGateway, unless you count the fact that a cable operator, Altice, uses it as a brand name.

Bay City Broadband Partners is claimed by a local wireless Internet service provider, Monkey Brains, and is said to include Nokia, Zayo and Black and Veatch. As far as I know, Sonic.net hasn’t said anything publicly but it isn’t a stretch to suspect they’re leading Sonic Plenary SF Fiber.

The three remaining contenders are still a long way from getting any kind of a contract. Later this year, the City will issue a formal request for proposals, and only the three blessed “respondent teams” will be eligible to bid. Although the City indicated it would be contributing money to the project, it hasn’t said how much.

FCC pits one local technical expert against big telecom’s lobbyist horde

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Ajit Pai is trying to stop the bleeding on his Broadband Deployment Advisory Committee (BDAC). The Federal Communications Commission chairman appointed David Young to the committee, as a representative of the National League of Cities. Young is the fiber infrastructure and right of way manager for Lincoln, Nebraska’s public works department. It’s not explicitly stated, but the intent seems to be to fill at least one of the chairs left vacant by recent resignations by high profile municipal representatives. Pai is now dealing with accusations that the committee’s broadband policy work was hijacked by telephone and cable company lobbyists, as well as the recent arrest of a former BDAC chair on fraud charges.

It’s completely appropriate for the League of Cities to take a place on the committee. It’s a national lobbying front for municipalities, allowing cities to push their common interests in Washington, D.C. Since BDAC’s membership – official and unofficial – largely comprises lobbyists representing telecoms companies, it’s course-of-business for the League to take a set at the table, too.

I don’t know Young, but after taking a look at how Lincoln supports fiber build outs in the community, it seems apparent that he knows his stuff. And his stuff is boots on the ground management of city permit processes and utility easement issues. That’s important experience, and the FCC should listen to his advice.

But the resignations of San Jose mayor Sam Licardo and New York City chief technical officer Miguel Gamino – both because of the way the FCC is kowtowing to cable and telco lobbyists – left a bigger hole than Young can fill. He should have been on the committee with Licardo and Gamino from the beginning. The FCC should have given equal weight to the technical and policy expertise offered by municipal representatives, particularly when crafting model policies that state and local governments will be urged – or perhaps required – to follow.

That didn’t happen. So when BDAC meets later this month, it’ll be one new, fresh local face versus a platoon of entrenched beltway bandits working for big cable and telephone companies. That’s something to keep in mind when evaluating whatever comes out of it.

AT&T, Comcast, Charter get net neutrality help from California senate friends

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Network neutrality legislation moved ahead in the California senate yesterday, but it’s not clear what exactly it says. The senate’s energy, utilities and communications committee worked over senate bill 822, before endorsing it on a party line vote and sending it on to the judiciary committee. As is common practice in Sacramento, the committee didn’t vote on the published text of the bill, carried by senator Scott Weiner (D – San Francisco), but conceptually approved it, based on unpublished amendments negotiated secretly on Monday, which will be further modified by changes yet to be dictated by committee chair Ben Hueso (D – San Diego).

At the end of a lengthy hearing, Hueso, a reliable friend of cable and telephone company lobbyists, looked at Weiner and said “there are some little things we have to fix with them and we’ll work with your office on clarifying what that is”.

“What little things?” Weiner asked.

“The mock up”, Hueso said, referring to the draft that Weiner thought the committee had agreed to support.

“You mean like typos or…”, Weiner replied.

“Potentially”, Hueso said with a low chuckle – the sort of nervous laugh you might make when a cop pulls you over and asks if you’ve been drinking. “Nothing major”.

A story by Jon Brodkin in Ars Technica offers some insight into what those little things might be. He obtained copies of unsigned “bill analyses” given to lawmakers by AT&T and the lobbying front used by Comcast and Charter Communications, the California Cable and Telecommunications Association.

That’s another common practice in Sacramento – industry lobbyists will submit anodyne comments for public consumption, and then fire broadsides at legislators behind closed doors, who are very mindful of the millions of dollars they collectively receive from those companies. Also behind closed doors.

However it turns out, it’s clear that the language in SB 822 is moving in the direction urged by telephone and cable company lobbyists. A committee analysis was published over the weekend – something Hueso is in a position to control – and it urged changes friendly to those industry interests. Based on the back and forth at yesterday’s hearing, it seems that the final product will be even friendlier.

California broadband subsidy rules and $300 million on the table

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The main event is finally under way. By yesterday’s deadline, thirteen organisations filed comments regarding how the California Public Utilities Commission should spend $300 million in new California Advanced Services Fund (CASF) money (plus however much more is left in the kitty) on broadband infrastructure subsidies. I haven’t read through them all yet – if you’re interested, I’ve posted them all here – but a top line glance shows that service providers, including the big incumbents who expect to use CASF as a private piggy bank, have a lot to say.

So do regional broadband consortia, and organisations that usually jump in on broadband issues. Yesterday’s round of comments focused mostly on broadband infrastructure grant rules, including the new $5 million line extension program that cable companies lobbied for – they want to evade CPUC oversight by laundering grant money through homeowners.

I drafted and submitted the Central Coast Broadband Consortium’s comments (with much appreciated distribution help from Trish Steel at the Mendocino Broadband Alliance). Our one big recommendation is to base infrastructure grant amounts on the level of service that the subsidised infrastructure will provide…

The CCBC recommends that the Commission…add one further criterion for determining the level of funding: the service level that a proposed project is capable of delivering and that the applicant commits to offering and fulfilling for at least two years following project completion.

In the Connect America Fund II auction phase, the Federal Communications Commission (FCC) has established “technology-neutral service tiers” and other service level metrics that will determine project eligibility and, effectively, the level of funding…the weighting used by the FCC for the various speed tiers can be applied to funding level decisions made by the CPUC. The CCBC recommends setting a base funding level of 80% of project costs and applying the FCC’s weighting criteria…

We made a similar recommendation for the line extension program, with the addition of suggested cost sharing and oversight requirements for the ultimate beneficiaries – the Internet service providers, including cable companies, who will own the infrastructure and bill homeowners for the service it supports.

Comments were also due on proposed changes to the CASF-funded regional broadband consortia program. California lawmakers approved a long wish list submitted by AT&T, Frontier and cable companies such as Comcast and Charter Communications that use a front organisation to do most of their public lobbying (the real lobbying, involving millions of dollars in cash payments from telecoms companies to legislators, is done behind closed doors of course). One of the lesser items on that list was restrictions on what regional consortia can do with the CASF money they get. We urged the commission not to take a narrow view of what those restrictions mean.

I’ll more to say about all comments as the week goes on and I make my way through them. Rebuttal comments are due in a couple of weeks.

Federal ag department looks to co-ops to lead broadband development

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At least one member of the Trump administration isn’t trying to smack local broadband initiatives with a preemption sledgehammer. Agriculture secretary Sonny Perdue spoke to a gathering of representatives of rural electric cooperatives. Those are (usually) small electric systems that are organised as buyer cooperatives – electric customers are the owners. The federal agriculture department has been subsidising them for more than 80 years. Many of those co-ops have branched off into the broadband business, also with subsidies from the agriculture department’s Rural Utilities Service (RUS).

Perdue likes that idea. He said the expansion of broadband infrastructure and service is “rural electrification of the 21st century”…

We are at the beginning, I think, of a seismic shift in technology and when you think just the beginning, you said, well, the Internet’s been around for how many years? Well, only 15 or so. When you think about that – how quickly it comes upon us, how quickly we become dependent on these technological advances. The partnership between rural electric cooperatives and the federal, state and local communities, I believe, can be, must be revolutionary in the change. I think it will be literally transformative around our country as we participate with you, as you participate with local, state and federal authorities to make sure this happens, just like it happened beginning in 1936 with the [rural electrification] act. You got the potential to do the very same thing in the 21st century.

The big question on the table now is what will he do with the $600 million that congress set aside for new broadband grants and loans. Perdue said his department is working on it. He didn’t offer any details, although he encouraged rural cooperatives to offer ideas on how the money should be spent.

Looked at one way, Perdue’s speech is a genuine plus for independent broadband development in the U.S. His good words and encouragement for rural cooperatives are 100% in line with federal agriculture department policy and practice. Which is great if you live in the midwest or south, where rural cooperatives are thick on the ground – RUS broadband programs are custom tailored to serve them.

That’s not so good for California, or many western states, where the utility cooperative model didn’t take hold with the same enthusiasm. There are only three in California – in Riverside, Modoc and Plumas and Sierra counties – and as a result, RUS broadband money tends to go to other states. Perdue is right about the valuable role cooperatives play, where they exist, but he needs to expand his department’s thinking about how to get the same results where they don’t.

Streetlight gifts to mobile carriers spread to other states

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California is not the only state where lobbyists for mobile carriers and other big, incumbent cable and telephone companies are giving stacks of cash offering somber advice to state legislators and getting huge gifts of public property in return. According to a couple of articles by Timothy Clark in Route Fifty, several other states are preempting local ownership of vertical infrastructure and municipal control of public right of ways.

In some states, the giveaway is even more generous than the California’s gift to telecoms lobbyists last year, senate bill 649. It was vetoed by governor Jerry Brown, who eased the pain by reinforcing AT&T’s and Frontier Communications monopoly in rural California with $300 million and, effectively, an end to similar subsidies for independent broadband projects. SB 649 would have set a blanket $250 a year lease rate for wireless broadband providers to attach cell sites and other equipment to city owned street lights. Depending on how you figure it, that’s something like one-fourth to one-half of the market rate.

In Texas, lawmakers went one better and sliced off a zero, setting the maximum municipal pole lease rate at $20 a year. The City of McAllen, Texas sued, claiming that the preemption violated the Texas constitution. McAllen is no stranger to fighting for municipal broadband rights, by the way. It drafted a “minority report” protest to the Federal Communications Commission over the way that industry lobbyists hijacked the Broadband Deployment Advisory Committee, and convinced San Jose and New York City to sign on.

According to Clark’s story

“In our legal analysis,” [McAllen city attorney Kevin Pagan] said, “the law forces us to give gifts to private parties. It is forcing us to give access to our rights-of-way at far less than market value. What about other companies using the rights of way? They are paying higher rates, and why wouldn’t they say, ‘What about us?’”

The wireless telecom companies, he continued, “want access to the rights of way like public utilities, but they don’t want to be regulated like a public utility.” Pagan noted while the companies promote small-cell as cutting-edge wireless technology, the cells rely on a vast fiber cable network that comprises 90 percent of the system, largely strung on poles in the rights of way.

Georgia lawmakers also passed similar legislation, and a preemption bill is making its way through the Nebraska legislature.