Tag Archives: fcc

FCC says it’s legal to give muni property to mobile companies because it’s illegal for cities to say no

by Steve Blum • , , , ,

Alice tall 625

The Federal Communications Commission says it has the authority to tell cities and counties what they can do with property they own, because otherwise they would be breaking the law. In a decision that should have surprised no one, the FCC refused to put its September wireless preemption ruling on hold.

Instead, in an odd bit of contradictory reasoning, the FCC’s latest order says it’s not taking away cities’ rights to property they own that’s located within the public right of way (ROW), such as street light poles and traffic signals. All the FCC is doing, the order says, is preventing local governments from breaking the law…

The Order does not implicate local governments’ actions in their role as property-owners; rather, it focuses on preventing them from violating federal law when they engage in “managing or controlling access to property within public ROW” for wireless facility deployment.

Except the illegal activities that cities are supposedly engaging in are completely legal. Or at least were until the FCC reversed earlier decisions and said that congress gave it the authority to tell local governments what they can do with property they own, simply because it’s in the ROW and mobile companies think it’s highly valuable.

The order was in response to a request from the National League of Cities and several local governments to delay enforcing the local property preemption until federal courts decide whether it’s cities or the FCC that’s breaking the law. It was a futile, but necessary move. Usually, federal judges won’t consider a request to delay a federal agency’s action until the agency refuses to do so itself.

The next move will be made in Denver, assuming that the federal appeals court headquartered there – the tenth circuit – doesn’t kick the case to San Francisco, as requested by the City of San Jose. San Jose and a couple dozen other local agencies will ask the court to ice the FCC decision until the larger legal challenge is decided. They have a fighting chance of winning the next round, not least because federal judges will want the FCC to give a better explanation than we’re right because we say we’re right.

Cable, fiber systems deliver broadband service at or near advertised speeds, DSL generally doesn’t, FCC report says

by Steve Blum • , , , ,

Fcc 2018 broadband report download

The FCC’s primary broadband metric is now the 80/80 benchmark: the minimum speed that 80% of users experience, 80% of the time during primetime viewing hours. When evaluated against that benchmark, cable modem and fiber-to-the-home systems do a reasonably good job of delivering service at advertised speeds. Among Californian providers, only Comcast fell noticeably short, with actual download speeds hitting around 90% of what they promise.

Telco DSL-based service doesn’t do so well. According to the FCC’s latest field tests, AT&T’s and Frontier Communications’ legacy DSL services – the kind you often find in rural California – deliver speeds that are about 60% of what they promise. AT&T’s advanced DSL systems – the upgraded kind that go into high potential neighborhoods – score around 90%.

On the upload side, cable and fiber providers generally meet or exceed their promised speed levels, but telco copper systems do even worse, again with the exception of AT&T’s upgraded systems.

Fcc 2018 broadband report upload

People use Internet service differently now than they did seven years ago, so the Federal Communications Commission added consistency metrics to its annual report on broadband performance in the U.S. It’s an acknowledgement that a steady stream of data, to support online video viewing, is more important than the occasional bursts of speed that old school web browsing requires…

We found that for most ISPs, actual speeds experienced by subscribers nearly meet or exceed advertised service tier speeds. However, since we started our MBA program, consumers have changed their Internet usage habits. In 2011, consumers mainly browsed the web and downloaded files; thus, we reported average speeds since they were likely to closely mirror user satisfaction. By contrast, by September 2016, the measurement period for this report, many consumers streamed video for entertainment and education. Both the median measured speed and how consistently the service performs are likely to influence the perception and usefulness of Internet access service.

The FCC bundled all of its telecoms and media research – wireline and mobile broadband, and video – into one giant data dump. The report includes a well-deserved shout out to the CalSpeed mobile broadband speed testing program. It’s run by the California Public Utilities Commission and even the FCC considers it a valuable and independent source of information about what mobile carriers (and, soon, wireline ISPs) actually deliver.

Much of the data was held back by the FCC for up to two years. John Brodkin has a good write up on that problem in Ars Technica. Ajit Pai won’t explain why this is the first time the broadband speed and availability analysis was released since he became FCC chair.

In some ways, Pai is remarkably open about FCC deliberations compared to his predecessors. He routinely releases draft decisions three weeks before commissioners vote. In the past, drafts were kept out of the public eye, although lobbyists with sufficiently deep pockets always seemed to know what was coming. But Pai is also cagey about what he releases, holding back this latest round of broadband data, as well as details regarding the millions of apparently bogus emails uploaded to FCC servers during the net neutrality debate.

Commissioners are scheduled to formally adopt the findings at their meeting on Wednesday.

FCC Communications Marketplace Report Collected Appendices, 4 December 2018 (this is the big document with the interesting data)

FCC draft Communications Marketplace Report, 21 November 2018

Cities ask to move appeals of FCC muni property preemption to San Francisco court

by Steve Blum • , , , ,

The cities, counties and related associations that are challenging the Federal Communications Commission’s decision to preempt local ownership of streetlight poles and similar municipal property in the public right of way are asking to move the case from Denver to San Francisco. A motion to that effect was filed yesterday in the Denver-based tenth circuit court of appeals by the City of San Jose and the other west coast agencies that appealed the FCC decision in the last week of October.

Mobile carriers also challenged the ruling, because they didn’t get everything they wanted. And – likely – because they didn’t want the case heard in San Francisco’s ninth circuit court of appeals, which is not their home turf, to say the least. Under court rules, when multiple appeals of a federal agency’s action are filed in different appellate districts within 10 days of its publication, a lottery is held to determine where they will be consolidated. Denver won the draw.

But San Jose and its cohorts found a wrinkle in the law. They argue that the 10 day clock starts running when the first appeal in a given agency proceeding is filed. The City of Portland appealed an earlier FCC wireline ruling two weeks before the local agencies and mobile carriers went to court to challenge the wireless ruling. The wireline and wireless rulings were part of the same proceeding: as case law cited by San Jose puts it, both “are associated with the same dockets, arise out of the same administrative proceeding, and govern aspects of a single agency undertaking to implement…provisions in the Telecommunications Act of 1996”.

All the cities and counties involved are in the ninth circuit’s vast western territory. In the past, the San Francisco court has interpreted federal telecoms law more narrowly, and more in line with municipal interests, than the Denver appeals court. It makes sense for them to try to get the case moved.

The mobile carriers and the FCC will have a chance to argue against the transfer, and it’s a fair bet they will. A decision on San Jose’s motion will likely come quickly from the Denver court – there’s not a lot of time left before the FCC’s wireless preemption ruling takes effect on 14 January 2019 and, whether it’s in Denver or San Francisco, there’s a lot of legal work to be done.

City of San Jose, et al, motion to transfer cases to ninth circuit, 29 November 2018.
City of Portland’s petition for review of FCC wireline order, 2 October 2018.
FCC report and order and declaratory ruling, In the Matter of Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment and Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, 2 August 2018.

Links to petitions, court documents and background material are here.

FCC embraces 25 Mbps down/3 Mbps up standard for faster rural broadband

by Steve Blum • , , , ,

The biggest, by far, broadband service and infrastructure program in the U.S. is the Federal Communications Commission’s Connect America Fund, which is handing out $3 billion$590 million in California – over the next decade. It’s been paying that money to Internet service providers – mostly incumbent telephone companies – who promise to provide a minimum service level of 10 Mbps download and 1 Mbps upload speeds.

That standard is about to be raised to 25 Mbps download and 3 Mbps upload speeds for some telephone companies because, an FCC draft decision says, “we recognise that access to 25/3 Mbps broadband service is not a luxury for urban areas, but a necessity for all”.

Just so.

It’s good news, and the republican majority on the FCC deserves credit for putting it on next month’s meeting agenda: approval is a virtual certainty. It’s a big step in the right direction, but it’s not mission accomplished yet.

In its draft, released just ahead of the Thanksgiving holiday, the FCC proposes to offer additional money to telephone companies that fall under the “rate of return” rules, if they upgrade their broadband infrastructure to support the 25/3 standard. There are different scenarios for how they might qualify for the extra money, and doing so is largely optional – the FCC would still subsidise 10/1 service.

“Rate of return” telcos are those that are still regulated based on costs and a particular return on their investment. The two biggest telcos in California – AT&T and Frontier Communications – do not fall into that category. They operate under the newer and inappropriately named “price cap” rules that let them charge as much as they want for broadband service (there are limits on telephone service charges, but not so strict that it makes a significant difference). A third, mid-sized telco in the Sacramento area, Consolidated Communications, is similarly unregulated, as is CenturyLink, which serves a few dozen homes along the Oregon border in Modoc County.

Small, rural telephone companies are regulated by the California Public Utilities Commission under the “rate of return” rules, though, and the new FCC incentives would apply to them.

The FCC said its decision to begin raising the standard was “informed by our recent auction to award universal service support in eligible areas”. In that auction, ISPs submitted bids to provide a particular level of service in return for a particular subsidy, with higher speeds and better quality getting preferential treatment. According to the FCC, 99.7% of the homes and businesses getting subsidised service as a result will be able to get 25/3 speeds or better.

The FCC’s move matches an earlier decision by the federal agriculture department to raise the minimum standard for its rural broadband subsidy programs to 25/3.

We are not so lucky in California, though. AT&T, Frontier, Comcast, Charter Communications and other big telecom companies paid key lawmakers tens of thousands of dollars each, and hundreds of thousands of dollars in aggregate, this past legislative session. In return, lawmakers approved a $300 million broadband subsidy program, courtesy of Californian taxpayers, that lowered California’s minimum acceptable broadband speed to 6 Mbps down and 1 Mbps up.

FCC’s broadband market share data shows urban/rural technology divide and decline of DSL

by Steve Blum • , , , ,

There’s a lot to chew over in the Federal Communications Commission’s latest report on broadband subscribers in the U.S. Just one of the many charts (pictured above) tells an interesting story about how people in the U.S. get fixed broadband service in their homes. Two conclusions jump out immediately: cable companies are winning the fight for broadband market share, but the availability of cable modem, fiber to the premise or other wireline service depends population density.

In other words, high density urban areas, and medium to high density suburbs are likelier to have high speed service via direct fiber or coaxial cable service, while people in rural areas are likelier to have to depend on fixed wireless or satellite providers.

DSL service, of whatever generation of technology, is fading into irrelevance. It is significantly less popular than cable modem service. Nationally, 62% of all fixed residential broadband service (defined as better than 200 Kbps in at least one direction) is delivered via cable modem, while telco style DSL accounts for 24%, and FTTP for 12%. But when usable service levels are examined, telco DSL craters, accounting for 13% of connections at 10 Mbps download and 1 Mbps upload speeds or better, and only 4% at speeds of at least 25 Mbps down and 3 Mbps up. The former is the FCC’s minimum for its $3 billion broadband subsidy program – the Connect America Fund – while the latter is the FCC’s and federal agriculture department’s minimum benchmark for what they call “advanced services” and what everyone else considers to be run of the mill Internet use in 2018.

The overall trend in California is the same, according to the study, which is based on reports filed by service providers as of 30 June 2017. It doesn’t break out residential and business connections, but market share figures for total connections tell a similar story: cable accounts for 64% of all broadband connections, telco DSL is at 28%, FTTP is at 8% and fixed wireless has about 1%.

FCC preemption of local pole ownership challenged by muni electric utilities

by Steve Blum • , , , ,

Municipal electric utilities joined the challenge the Federal Communications Commission’s decision to preempt local ownership and control of streetlights and other publicly-owned infrastructure in the public right of way. The American Public Power Association, which represents cities, utility districts and other public agencies that provide electric service, filed a petition in the federal appeals court in Washington, D.C. last week, asking that the ruling be overturned.

It argues…

In the Order, the Commission has improperly asserted regulatory authority and jurisdiction over the control and use of public power utility facilities. The Order exceeds the Commission’s statutory authority; poses significant risks to safe, secure, and reliable electric utility operations; and interferes with the proprietary rights of public power utilities to determine the terms and compensation for use of their utility assets by private wireless carriers.

That makes a total of eight challenges to the FCC ruling. Three were filed by western cities with objections that parallel the APPA’s; four by mobile carriers that want federal judges to give them everything they asked for, instead of the virtually everything they got from the FCC.

The City of Huntington Beach filed its obligatory and brief description of its case, stating…

The federal government cannot deprive a state or cities of their proprietary powers as owners of property…Localities, in their capacity as a property owner, have the “right to decline to lease the property except on agreed conditions.”

The group led by the City of Seattle submitted similar comments. The City of San Jose-led challengers filed their’s last week.

More challenges are possible (and might have already been filed – I’m not checking every circuit court every day). The deadline is the middle of next month, 60 days after the FCC’s ruling was published in the federal register. An earlier deadline – 10 days after publication – was for getting into the judicial lottery that determines which court of appeals will hear the case. That honor went to the tenth circuit court of appeals, based in Denver. Presumably, the APPA case will be transferred there, along with AT&T’s appeal, which was also filed in D.C.

Links to petitions, court documents and background material are here.

FCC illegally “asserts federal control over municipal utility structures”, court told

by Steve Blum • , , , ,

The City of San Jose briefly explained its case against the Federal Communications Commission in a filing with the federal appeals court in Denver last week. San Jose, Los Angeles County and eighteen other western cities joined together to challenge the FCC’s decision to preempt local ownership of streetlights, traffic signals and other municipal property that’s located in the public right of way.

Six other challenges were filed – two by local agencies and associations that represent them, and four by mobile operators who think the FCC wasn’t generous enough. The cases were lodged in several different federal appeals courts around the country, and then were consolidated, via a lottery, in the tenth circuit court of appeals in Denver.

AT&T’s appeal was filed in Washington, D.C. but wasn’t included in the first round of consolidation. Last week, the FCC asked that it be moved to Denver, too, and AT&T didn’t oppose the request.

San Jose told the court…

On Sept. 26, the Federal Communications Commission issued a Declaratory Order and Report and Order…that, among other things: reinterprets key statutory terms…and which establishes new deadlines for action on applications for “small wireless facilities.” Many local governments, including Petitioners, objected to the FCC’s proposals on both legal and policy grounds, and submitted substantial legal, economic, and policy evidence into the underlying record never addressed by the agency.

Among other things, the Order abrogates an en banc plain language decision of the Ninth Circuit interpreting [those key statutory terms]; requires states and localities to lease facilities not generally dedicated to public use to certain wireless companies at out of pocket costs…asserts federal control over municipal utility structures; shortens time for action on wireless applications in a way that is designed to prevent public participation; and sets a federal standard for aesthetics without authority. Petitioners dispute the ruling on statutory and constitutional grounds, and also argue that it is, inter alia, arbitrary, capricious, an abuse of discretion and otherwise contrary to law.

The second group of cities and other organisations, which is led by the City of Seattle, hasn’t offered its initial argument yet, nor has the City of Huntington Beach, which launched a solo appeal.

Verizon, Sprint and Puerto Rico Telephone have, though. Verizon’s litigious trolling is typical, claiming that the FCC completely blew it because it didn’t go far enough…

The FCC’s refusal to implement a “deemed granted” remedy is arbitrary and capricious in violation of the Administrative Procedure Act, and is an abuse of the Commission’s discretion. It also violates other federal laws including, but not limited to, the Communications Act of 1934, the Commission’s own regulations, and the United States Constitution; and it is otherwise contrary to law.

AT&T’s initial filing made a similar claim, so it’ll be no surprise if it follows Verizon’s lead. The federal appeals court in Denver hasn’t set a schedule for further proceedings yet.

The FCC’s order is scheduled to take effect on 14 January 2019. The logical next step for the municipal challengers is to ask the court to put it on hold, until the cases are heard.

Links to petitions, court documents and background material are here.

U.S. mobile carriers asked to explain tests showing they throttle particular video providers

by Steve Blum • , , , ,

Three U.S. senate democrats are calling out the four major mobile carriers on their throttling and prioritisation policies. Senators Edward Markey (D – Massachusetts), Richard Blumenthal (D – Connecticut), and Ron Wyden (D – Oregon) sent joint letters to the CEOs of AT&T, Sprint, T-Mobile and Verizon, asking them to explain results from an Internet traffic testing app that indicate they’re deliberating slowing some traffic down…

We write to express our concern that mobile carriers may be inappropriately throttling and prioritizing internet traffic from common mobile apps without the knowledge of their customers. Through the use of the app Wehe, researchers recently identified numerous instances of cellular providers throttling video and communications services.’ Such practices would violate the principles of net neutrality and unfairly treat consumers who are unaware that their carriers are selecting which services receive faster or slower treatment…In light of this study, we write to ask you about your policies regarding the treatment of internet traffic.

The companies are not obligated to respond and, given that the U.S. senate will remain in the control of republicans, the threat of a hearing or other compulsory action isn’t readily apparent. But it could be embarrassing, and it’s a good bet that the three senators will make the most of that opportunity, should it arise.

On the other hand, if they do respond, it’ll be interesting to see what they say. And particularly interesting if AT&T CEO Randall Stephenson cops to throttling the three video services – YouTube, Netflix, and NBC Sports – that the letter calls out. His chief staff lobbyist in Sacramento, Bill Devine, claimed that AT&T does not “degrade Internet traffic” during hearings on senate bill 822 – California’s net neutrality law – earlier this year. He didn’t stick to the truth in other respects; the question now is whether his boss will try to bluff it out too.

Big telecoms’ one net neutrality victory in California is the one that matters

by Steve Blum • , , , ,

The California legislature’s failure to pass senate bill 460 in August, following large cash payments to key lawmakers by big telecoms companies, might come back to haunt network neutrality advocates. Carried by senator Kevin de Leon (D – Los Angeles), he allowed it to be shuffled off to the side as lawmakers approved SB 822, a comprehensive net neutrality bill authored by senator Scott Wiener (D – San Francisco).

With some exceptions, SB 460 would have required state and local agencies to buy broadband service only from providers that abide by net neutrality principles. Given that it’s the big telecoms companies – AT&T, particularly, but also Comcast, Charter and Frontier – that dominate the government services market, it would have been a powerful incentive for them to stick to those rules.

It’s also much safer ground for state-level action. SB 822 is on hold, following a federal court challenge, and it could be years before it has any effect, even if it survives the legal process. But SB 460 was about public procurement policy, and that’s something that federal agencies, particularly the Federal Communications Commission, don’t have much, if any, control over.

The FCC’s top staff lawyer, general counsel Tom Johnson, conceded as much during a recent appearance at a Washington, D.C. event, according to a story in Politico

Although the FCC believes it can override state net neutrality laws like the one in California, it hasn’t yet settled the question of whether it can challenge efforts to make net neutrality a requirement for state government contracts, Johnson said. “The commission has not taken an explicit position,” he said, adding the FCC hasn’t sought to intervene in such procurement-related actions for that reason.

De Leon never seemed to have a particular passion for net neutrality. He backed several bills aimed at high profile issues this past year, as he tried to gain some traction in his ultimately futile attempt to beat Diane Feinstein in the race for her U.S. senate seat. He had a hard time articulating a coherent argument for his bill; during one committee meeting, Wiener had to step in and explain why both bills were needed.

SB 460 was necessary because SB 822 was, and is, resting on shaky legal ground. With it off the table for the foreseeable future and SB 460 trashed, California will end 2018 exactly the way it began it: with no net neutrality guarantees at all.

Denver court will hear appeals of FCC decision to preempt local control over poles, wireless permits

by Steve Blum • , , , ,

A federal judicial panel decided on Friday to consolidate at least six of the seven appeals filed by local governments and wireless carriers against an FCC ruling that attempts to set sweeping new small cell permit and leasing rules for local and state governments. Yesterday, the court given the job – the tenth circuit of the U.S. court of appeals, based in Denver – issued instructions to the challengers, essentially telling them to get their paperwork in order and stand by for further instructions.

Three of the appeals were launched by west coast cities, counties and their associations. They object to the sharp limitations that the FCC wants to put on their standards, procedures and fees for small wireless facility permit applications, and to the FCC’s declaration that they can’t control property they own in the public right of way, such as street light poles and traffic signals.

According to the FCC, cities have to allow wireless carriers to attach equipment to street light poles more or less at will, and only charge $270 per pole per year for the privilege. The Californian average for municipal pole leases is between $500 and $900 per year, with many Bay Area cities beginning to come to a consensus around the $1,500 per year figure.

The other four appeals were filed by wireless carriers: AT&T, Verizon, Sprint and the Puerto Rico Telephone Company (PRT). They think the FCC’s ruling didn’t go far enough – they want all the marbles, not just most of them. Verizon’s appeal surfaced at the end of last week. I’m not sure exactly what happened, but it appears that there was some kind of paperwork glitch that delayed its release. There’s no substance to it yet; Verizon simply asked the federal appeals court in New York to review the FCC ruling.

Because the seven appeals were spread over five federal appellate districts, a judicial panel held a lottery to decide where they’ll all come together. The Denver court’s name was drawn. It’s where Sprint’s case was filed. As of last night, it’s assigned the appeals filed by the local agencies, Sprint, Verizon and PRT. AT&T’s appeal, which was filed in the District of Columbia, isn’t included yet.

A similar drawing was held earlier this year when several groups appealed the FCC’s decision to repeal network neutrality rules. The initial winner was the San Francisco-based federal appeals court, but the cases were eventually moved back to Washington, D.C. by mutual consent. There’s no indication yet if something like that is in the works for these wireless preemption appeals, or where AT&T’s case will land.

Links to petitions, court documents and background material are here.