FCC’s have it both ways brief is California’s heads we win, tails you lose hope

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Besides doing rhetorical back flips to explain why broadband isn’t a telecommunications service, the Federal Communications Commission’s defence of its decision to scrap network neutrality rules also goes to great lengths to justify its declaration that states cannot impose their own laws as a substitute. This specific preemption, along with federal law and the general constitutional principle that the federal government has sole authority over interstate commerce, forms the basis for the court challenge to California’s net neutrality law mounted by lobbyists for AT&T, Charter, Comcast, Frontier and other monopoly model telecoms companies, and the allied law suit filed by the Trump administration.

In doing so, the FCC relies heavily on a recent ruling by a federal appeals court in Minnesota that barred that state from regulating what it defined as an “information service” – VoIP – provided by Charter Communications. Neither the District of Columbia appeals court hearing the challenge to the FCC decision or the one in California are obligated to follow the Minnesota court’s ruling.

But if they do, then they should also give equal weight to its assumption that the Internet access Charter provides is an underlying “telecommunications service”.

Although federal courts generally leave technical determinations up to administrative agencies such as the FCC, there’s a point where contradictory decisions – between courts and agencies, and within agencies themselves – have to be resolved. In this case, the FCC is trying to have it both ways, by declaring that broadband service itself is an unregulatable information service, then turning around and basing its supposed preemption of state laws regarding on its authority over communications services.

Some of the services ISPs provide are information services: video, productivity apps and, perhaps, VoIP. Basic Internet access, though – the transmission service they all ride on – is a telecommunications service. The FCC might have sufficient authority and evidence to say it isn’t for the purpose of defining its role and the reach of federal telecoms law – that’s the key question in front of the D.C. court.

If the D.C. court rejects the FCC’s reasoning and throws out the 2017 decision, federal net neutrality rules are back in effect. But if it agrees with the FCC, then the foundation of the case against California’s net neutrality law crumbles, and California has a fighting chance of keeping the Internet open.

PG&E didn’t start any fires this week and Californians complain

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Pacific Gas and Electric began shutting down electric lines in high risk fire zones on Sunday night, as winds topping 50 miles per hour ripped through northern California. At last report, PG&E had cut power in seven counties – Amador, Calaveras, El Dorado, Lake, Napa, Placer and Sonoma. Crews inspected lines for damage yesterday, as PG&E gradually restored power to the majority of blacked out customers. The job is expected to be finished today.

On Sunday, alerts were broadcast widely. Residents in several other counties were also warned that the cuts might come, and that they should prepare. PG&E has an an opt-in alert system for customers, and county emergency services offices also got the word out.

The goal was to prevent disasters like the massive fire storms that killed dozens of people and burned hundreds of thousands of acres this year and last, including in densely populated residential areas. It’s impossible to know whether a disaster was prevented this time. All that can be said is that Cal Fire had three blazes on its hands yesterday – all were small and largely contained. There’s been no indication that electric lines had anything to do with them.

Naturally, this being California, people are upset about it. Many who have chosen to live and work in high fire risk areas whined about losing power. According to a story in the Weekly Calistogan by Cynthia Sweeney, one local businessman griped about his disappointment with PG&E. “Couldn’t they have given us a reprieve?” he said. “It’s sending a message that October is a scary time to come here”.

Duh.

Southern California Edison sent out similar warnings on Sunday and Monday, as Santa Ana winds hit. As of the company’s last update, no deliberate power cuts have been made.

San Diego Gas and Electric has proactively cut power due to fire danger in the past. It’s been tagged with billions of dollars in fire damage costs, including for one fire in which it shared responsibility for starting it with Cox Communications.

Former chief judge sues CPUC, claims firing due to PG&E investigation retaliation, racial bias

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The California Public Utilities Commission is being sued by its former chief administrative law judge, Karen Clopton. She was fired from her job in 2017.

One of the few things the two sides agree on is that “the CPUC terminated [Clopton’s] employment” and that it was an “adverse action”, as one of the commission’s filings put it. The formal reason for the dismissal isn’t stated in court documents, by either side.

Clopton charges that the real reason she was fired was racial discrimination – she’s African American – and as retaliation for her cooperation “with state and federal investigations into the misconduct of CPUC commissioners and staff”, including allegations of “judge shopping”, during the CPUC’s own investigation of the fatal PG&E gas line explosion in San Bruno in 2010.

The complaint Clopton filed with the San Francisco superior court says “beginning in June 2016, the commission began an investigation and hired an outside investigator to look into Ms. Clopton’s ‘management style,’ including allegations that she engaged in ‘bullying, intimidating, and retaliatory’ behavior towards staff”, which, it says, “were without any factual basis and represent merely the efforts of a few disgruntled employees whose performance Ms. Clopton was required to criticise and correct”. The complaint goes on to say that later, in 2017, commissioners “gave Ms. Clopton a poor evaluation, rating her as ‘improvement needed’ in subjective areas of her performance, including ‘communications skills’ and ‘relations with others’”.

Clopton’s complaint charges that her poor review reflected “resentment” at her “efforts to encourage the commission and staff to maintain high ethical standards” during the criminal investigation into the PG&E/San Bruno “judge shopping” case, and at her “persistent efforts to identify and critique actions and statements reflecting racial bias by commission members and their staff”.

The reply from the commission was to simply “deny the allegations”, which is a proper legal response at this stage of a lawsuit. Detailed arguments and hard evidence come later.

Clopton would have been involved in assigning judges to cases, including the commission’s initial inquiry into the San Bruno explosion. There’s little doubt her cooperation would have been useful during the criminal investigation into how the CPUC handled it. Most of the facts surrounding the San Bruno case and the subsequent investigation have not been publicly disclosed, including Clopton’s role. If her lawsuit goes to trial, we might learn more about the whole story.

Court documents
Order, regarding CPUC objections to amended complaint, 29 May 2018
Order, regarding case management conference, 5 September 2018
Order to show cause, regarding response to 29 May order, 10 October 2018

Documents filed by Clopton
Original complaint, 13 December 2017
Amended complaint, 8 March 2018
Response to CPUC objection to amended complaint, 15 May 2018
Case management statement, 28 June 2018
Case management statement, 4 September 2018

Documents filed by CPUC
CPUC objection (aka demurrer) to original complaint, 13 February 2018
CPUC objection to amended complaint, 13 April 2018
CPUC reply to Clopton response, 21 May 2018
CPUC answer to amended complaint, 28 June 2018
CPUC case management statement, 7 July 2018
CPUC case management statement, 4 September 2018
CPUC case management statement, 9 October 2018

FCC’s definition of information is a bad 1990s nostalgia trip

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The Federal Communications Commission is strenuously and – I’d say – unconvincingly arguing that broadband is an information service and not a telecommunications service, as it defends last year’s decision to roll back network neutrality rules. In a brief filed with a Washington, D.C. appeals court, the FCC defended both the logic of its decision and the way it arrived at it.

Courts have already told the FCC that it needs to define broadband as a telecoms services before it can impose common carrier obligations on providers, which, for all practical purposes is what network neutrality rules do.

The FCC’s defence of its conduct relies primarily on older rules, and even older studies, that prevailed before the Obama administration’s commission, with its democratic majority, changed course in 2015 and declared broadband is a common carrier, telecommunications service.

When the Trump administration’s republican led FCC reversed that decision last year, broadband went back to being a largely unregulated information service. It’s accused now of acting quickly without giving the decision as much consideration as the law requires. Its frontline defence amounts to the other guys were arbitrary and capricious, we’re just putting it back to what it was for 20 years.

In the mid–1990s, platforms like AOL offered generic internet access, but it was an add-on to the main business of providing a walled garden line up of data, services and fora. That’s not what broadband providers do now, though. Most Internet traffic is a simple transmission link, between a user and third party service or content platform. So the FCC brief tries to concoct a new definition that fits that model…

A service that offers a capability to generate and process information is an information service, but a service, like broadband, that offers a capability to acquire, retrieve, and utilize information is also an information service.

The problem with the FCC’s argument is that its new definition of information looks a lot like the legal definition of telecommunications…

The term “telecommunications” means 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.

It’s not 1995 anymore. This attempt to redefine information is blatant fantasy. The question will be whether the court will abandon the usual deference it shows to the supposed technical and subject matter expertise of federal regulatory agencies and come down on the side of reality.

Telecoms, data center infrastructure infiltrated, Bloomberg stories say, mystery deepens despite denials

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Taken at face value, a pair of articles on Bloomberg by Jordan Robertson and Michael Riley details how Chinese government intelligence agencies snuck tiny chips into computer servers used by Amazon and Apple, and by at least one major U.S. telecoms company. The devices – as small as the tip of a pencil – could be used to listen to communications going in and out, or to dive deeper into those systems.

If true, Bloomberg’s reporting means that the Chinese government, and possibly other intelligence agencies and criminal groups, have a backdoor that leads deep into U.S. telecoms and data processing infrastructure. It is flatly denied by some U.S. government security officials, by Apple and Amazon, and, according to a story by Jason Koebler, Joseph Cox, and Lorenzo Franceschi-Bicchierai on Motherboard, by most major U.S. telecoms companies…

Motherboard has reached out to 10 major US telecom providers, and the four biggest telecoms in the US have denied to Motherboard that they were attacked: In an email, T-Mobile denied being the one mentioned in the Bloomberg story. Sprint said in an email that the company does not use SuperMicro equipment, and an AT&T spokesperson said in an email that “these devices are not a part of our network, and we are not affected.” A Verizon spokesperson said: “Verizon’s network is not affected.”

A CenturyLink spokesperson also denied that the company is the subject of Bloomberg’s new story. A Cox Communications spokesperson said in an email: ”The telecom company referenced in the story is NOT us." Comcast also said it’s not the company in the Bloomberg story.

Charter Communications and Frontier Communications, two of California’s biggest telecoms companies, aren’t on the not me list, but that might be the result of poor response by their press relations people or, less likely, because they weren’t contacted by Motherboard.

Although Bloomberg’s stories have been refuted by U.K. intelligence agencies, their U.S. counterparts have been silent, as is common practice. Which leaves the door open to uncomfortable speculation: they could have discovered the backdoors and be taking advantage of them too. And if they can, so can other national governments and criminal organisations. Unfortunately, U.S. government spy agencies put a higher priority on their own access to cracked systems, than on defending public cyberspace.

Until this mystery is solved, we’ll have to cope with the possibility that our data centers and telecoms networks are hopelessly compromised.

Motions to block California’s net neutrality law to be heard end of November

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The federal justice department will work side by side with telecom industry lobbyists to block California’s new network neutrality law. The two challenges to senate bill 822, filed shortly after it was signed into law by California governor Jerry Brown, will be taken up as a package by a federal judge in Sacramento. For now, the two cases will be technically separate, but will be argued and decided together.

Judge John Mendez set a hearing for 28 November 2018 to decide if he’ll issue a preliminary injunction that would prevent SB 822 from taking effect in January. AT&T, Charter Communications, Comcast and Frontier Communications, among others, claim they “will suffer immediate and irreparable harm” if it’s enforced before the core issues are argued and, eventually decided, next year.

In theory, it shouldn’t have much effect, if any, on California’s monopoly wireline broadband providers – they claimed to be honoring net neutrality principles during their full throated – deep pocketedattacks on SB 822. The reality is likely different. The ferocity of the disinformation campaign they waged might lead you to believe they have something to fear. Mobile carriers certainly have immediate worries: SB 822 bans zero rating, which is common practice on the wireless side of things.

Mendez gave the California attorney general’s office an extra week to answer the two challenges. It has to file a single response by 26 October 2016. Then the federal justice department and the telco and cable front organisations have two weeks to prepare their rebuttals.

The door is also open for other interested parties to jump into the case. Anyone wanting to offer facts or arguments for or against California’s net neutrality law can request permission from the judge and file their briefs at the same time.

The schedule approved by Mendez gives any third party – an amicus curiae – that wants to support the Trump administration’s and telecom industry’s cases until next Friday, 19 October 2019, to file their paperwork. Those wanting to add their weight to California’s defence have until 2 November 2018.

PG&E responsible for Yuba County fire, AT&T is in the clear Cal Fire report says

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Pacific Gas and Electric power lines were the cause of the Cascade fire in Yuba County last year, one of many fires that came to be known collectively as the “October 2018 Fire Siege”. That’s according to an investigation report released by the California Department of Forestry and Fire protection. However, unlike some of the other fires where PG&E was implicated, the cause was not the result of a failure to follow laws regarding utility line maintenance and operations.

According to a Cal Fire press release, the problem was unusually high winds hitting what appeared to be properly built and maintained electric lines…

A high wind event in conjunction with the power line sag on two conductors caused the lines to come into contact, which created an electrical arc. The electrical arc deposited hot burning or molten material onto the ground in a receptive fuel bed causing the fire. The common term for this situation is called “line slap” and the power line in question was owned by the Pacific Gas and Electric Company.

As a matter of routine practice, Cal Fire forwarded the report to the Yuba County district attorney, but according to the Los Angeles Times, “Yuba County prosecutors said Tuesday they would not press charges against the company”. That’s in contrast to three fires in Butte and Nevada counties around the same time, where Cal Fire said that PG&E violated the law and the district attorneys are figuring out next steps.

AT&T telephone lines were also on the same poles, but were not implicated as a cause of the fire, according to the report.

Although PG&E and AT&T apparently did not break any laws, that’s not the same thing as saying they are off the hook for civil liabilities. There’s nothing to indicate that AT&T will be caught up in any of that, but PG&E likely will be. Even if PG&E followed the rules and was only partly to blame, the law governing utility poles and lines says that if a utility is involved in causing the fire, it has to pay for all damage. Even if others share the blame. A new law passed at the end of the legislative session in August allows electric companies to share the cost – which in PG&E’s case will run well into the billions of dollars – between its shareholders and customers, subject to the approval of the California Public Utilities Commission.

FCC’s broadband paradox opens a door for California’s net neutrality law

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Both California and Washington now have laws on the books that, to one extent or another, reinstate network neutrality rules that were scrapped last year by the Federal Communications Commission. California’s law was challenged by the Trump administration in federal court a couple of hours after it was signed, on a Sunday afternoon, by governor Jerry Brown. Lobbying fronts for AT&T, Comcast, Charter, Frontier and other monopoly model telecoms companies soon followed.

Conventional wisdom has been that a state can’t regulate Internet access service, because it’s clearly a matter of interstate – international, really – commerce. Regulating it is, therefore, a responsibility that the U.S. constitution assigns to the federal government.

But when the FCC repealed its own 2015 net neutrality rules, it stepped away from the job completely, while at the same time telling states they couldn’t step in. That’s a paradox, according to communications law experts interviewed for a Wired article by Klint Finley

“It’s hard to find a case that’s perfectly, squarely applicable, where an agency says ’we’re vacating the field, and we’re not allowing anyone else to enter the field,’” says Marc Martin, a former FCC staffer during the presidency of George H.W. Bush who is chair of law firm Perkins Coie’s communications practice…

“Usually you have preemption where there is a federal rule and a state tries to enact an incompatible rule,” says Pantelis Michalopoulos, a lawyer with the firm Steptoe & Johnson who is representing net neutrality advocates in a federal lawsuit against the FCC. “You’re in a much weaker position when you try to preempt a state rule where there is no federal rule.”

On the same day that Wired posted its piece, the Wall Street Journal ran a scathing editorial accusing California’s “progressive imperialists” of breaking the Internet. Which won’t be allowed, because “the internet by definition is interstate communication”.

Except that the FCC’s most recent net neutrality ruling declares that broadband is not a telecommunications service and is, instead, an information service that’s outside of its control.

The FCC made an unconventional decision. There’s no particular reason to believe that the courts will rely on conventional wisdom to enforce it.

California IoT law requires manufacturers to build security into connected devices

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A pair of linked bills passed by the California legislature and signed into law late last month by governor Jerry Brown require manufacturers to preload passwords or install other security features on any kind of device that’s directly or indirectly connected to the Internet, beginning in 2020. Assembly bill 1906, carried by assemblywoman Jacqui Irwin (D – Ventura) and senate bill 327, authored by senator Hannah-Beth Jackson (D – Santa Barbara) are aimed at protecting privacy, and preventing the rise of botnets – networks of online devices that are infected with malware and used by cybercriminals for their own purposes.

The new law isn’t limited to consumer electronics products. Commercial and industrial devices – anything that’s part of the Internet of Things (IoT) – fall under the legislation’s broadband definition…

“Connected device” means any device, or other physical object that is capable of connecting to the Internet, directly or indirectly, and that is assigned an Internet Protocol address or Bluetooth address.

Manufacturers will have to equip a device with “a reasonable security feature” that’s “appropriate” to its “nature and function” and the type of information it collects. Preprogrammed passwords are specifically mentioned as acceptable, as is forcing users to create a password or otherwise “generate a new means of authentication” the first time they use it.

Enforcement of the new law is limited to the attorney general, county district attorneys and city and county attorneys. It doesn’t create a new windfall for contingency fee lawyers.

Up until now, California law hasn’t had much to say about IoT security. A law passed in 2015 requires warnings on Internet-connected television sets with voice recognition features, and prohibits using recorded conversations for advertising purposes. A 2006 bill established similar consumer notice requirements for WiFi access points.

A third IoT-related bill – AB 2167 by assemblyman Ed Chau (D – Los Angeles) – died in the California senate on the final day of the legislative session. It was specifically aimed at “ingestible” sensors used for health monitoring.

T-Mobile, Sprint merger review widens in California

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It seems someone jumped the gun at the California Public Utilities Commission, and prematurely sent out a ruling defining the scope of California’s regulatory review of T-Mobile’s proposed purchase of Sprint. On Thursday, the commissioner in charge of the inquiry, Clifford Rechtschaffen, issued an amended version of the “scoping memo” he released the week before, saying the first one “was mailed in error”.

There are several wordsmithing changes in the updated version, and a few that are more substantive. One big change is a broad, up front statement making it clear that there are no particular limits to what the review will cover…

The scope of this proceeding includes all issues that are relevant to evaluating the proposed merger’s impacts on California consumers and determining whether any conditions should be placed upon the merged entity.

Additions to the specific, but “non-exhaustive” list of items that will be covered include consideration of potential new services the combined company might offer and – for both new and existing services – the impact on communities and regions, as well as California a whole.

The net result is that the focus (if you want to call it that) of Rechtschaffen’s investigation is even wider than before. It won’t be limited to a few specific and largely technical issues, as T-Mobile and Sprint had hoped.

The original schedule called for a final decision by next June. The core of the new schedule tracks with the original one, but the beginning of public hearings over the next two or three months, and the final wrap up next spring (or maybe summer?) are more indeterminate. Instead of the CPUC voting on a final decision in “June 2019”, the schedule calls for that to happen in “2nd Quarter 2019”. Given the way decisions are drafted, reviewed and then put on the commission’s agenda, June is still a reasonable bet. But it might happen sooner. Or later – CPUC timelines have been known to slip.