Tag Archives: fcc

Net neutrality bills converge at the California capitol

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The two network neutrality bills moving through the California legislature will finally be reviewed together, or at least one after the other, in a committee hearing. Next week, the California assembly’s communications and conveyances committee is schedule to take up senate bills 460 and 822.

SB 822, by senator Scott Weiner (D – San Francisco) is the stiffer and better written measure. It mimics the same three bright line rules that the Federal Communications Commission enforced until this past Monday – no blocking, throttling or paid prioritisation – and adds zero rating to the list.

Zero rating is the practice of not counting a carrier’s own content against data caps. For example, if AT&T said that its mobile customers could watch all the DirecTv video they wanted, but anything they streamed from Netflix would count against their monthly data limit, then that would be zero rating.

State and local agencies would also not be allowed to buy Internet service – mobile or fixed – from companies that don’t abide by SB 822’s rules.

The bill was recently amended, but the changes are generally technical. A sharper distinction was drawn between “mass market” and “enterprise” services – the rules would apply to mass market service, but not to “offering[s] to larger organisations through customised or individually negotiated arrangements or special access services”. Language that specifically authorises the California attorney general to bring offending companies to court was eliminated. The net neutrality rules would be written into consumer protection law, which already gives the attorney general authority to act.

SB 460 is authored by senator Kevin de Leon (D – Los Angeles). It was cobbled together as a legislative deadline ticked down at the beginning of the year and isn’t as well thought out as SB 822. But de Leon was senate majority leader until recently and has the desperate job of trying to unseat fellow democrat Diane Feinstein in this year’s U.S. senate race. Owning a bill that takes on a high profile issue targeted by democrats at the national level will help him raise money and gain name recognition.

Both bills won’t make it through the legislative process and land on governor Brown’s desk. The likeliest outcome will be for the two to be combined into a jointly authored bill. The best opportunity to do so might come at next Wednesday’s hearing. The question is whether the often industry-friendly communications and conveyances committee will choose the weaker or stronger option.

Where’s the kaboom? There was supposed to be an earth-shattering kaboom

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If you’re reading this post, the Internet did not explode when network neutrality control rods were yanked this morning. The Federal Communications Commission made today the day that its repeal of bright line net neutrality no-nos – no blocking, throttling or paid prioritisation – takes effect.

The federal appeals court challenge to the FCC’s action hasn’t gone anywhere yet, except to bounce from Washington, D.C. to San Francisco, and back again. As of Friday afternoon, no one had even asked the D.C. circuit court to put the FCC’s rollback on hold. The case is still active, but so far it’s just chugging along at the speed of justice – slow. It could be years before legal challenges to the FCC decision are complete.

The effort to overturn the decision in the U.S. congress isn’t moving even that fast. Although it was narrowly approved by the U.S. senate, the resolution of disapproval is stalled in the house of representatives. The Verge hopefully reports that it’s “less than 50 votes from passing”, which is another way of saying that not even all democrats are on board with it. You can check the list here.

The smart money says that the big players, including Comcast, Charter Communications, AT&T and Frontier Communications, won’t rush to subdivide the Internet into walled gardens. If you take them at their word, they will begin channeling traffic into paid-for fast lanes and free slow lanes. But even that’s not likely to happen quickly. They will be careful not to needlessly antagonise federal lawmakers ahead of the November elections, when net neutrality will be a campaign issue, or while the resolution of disapproval is still on the table.

They’ll also want to keep the heat down while they try to beat back efforts in the California legislature to reinstate net neutrality obligations at the state level. Senate bill 460, the weaker of the two net neutrality revival attempts, is scheduled for a hearing in the assembly communications and conveyances committee on Wednesday. It’s possible that SB 822, the beefier bill, will join it.

FCC caught in lies about flood of net neutrality comments

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The Federal Communications Commission lied when it claimed its online public comment system was blocked by a deliberate and malicious cyber attack, after HBO’s John Oliver issued a call to arms over plans to repeal network neutrality rules. Then it lied again to protect the first lie. That’s the conclusion of an investigation into the incident by Gizmodo.

As I blogged about at the time, the FCC’s online system came to a grinding halt, apparently after being flooded with automated comments of dubious origin that supported the repeal. In a press release, the FCC blamed it on “multiple distributed denial-of-service attacks (DDos)”. Later, according to Gizmodo, the FCC tried to back up that statement by saying a similar attack knocked out its comment system in 2014.

According to documents pieced together by Gizmodo, both claims were false…

Internal emails reviewed by Gizmodo lay bare the agency’s [2017] efforts to counter rife speculation that senior officials manufactured a cyberattack, allegedly to explain away technical problems plaguing the FCC’s comment system amid its high-profile collection of public comments on a controversial and since-passed proposal to overturn federal net neutrality rules…

David Bray, who served as the FCC’s chief information officer from 2013 until June 2017, assured reporters in a series of off-the-record exchanges that a DDoS attack had occurred three years earlier. More shocking, however, is that Bray claimed Wheeler, the former FCC chairman, had covered it up.

Bray responded in a blog post of his own, saying picky, picky, picky

Whether the correct phrase is denial of service or “bot swarm” or “something hammering the Application Programming Interface” (API) of the commenting system — the fact is something odd was happening in May 2017.

That’s kind of like calling the police and saying you can’t leave your house because you’re under siege by a North Korean special forces battalion, but when they show up, they find you drove home drunk and parked your car too close to the garage door.

Well, okay officer. But I swear, something odd was happening.

Starks to replace Clyburn on FCC

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There will be a new face on the Federal Communications Commission next month, assuming that the U.S. senate confirms the nomination of Geoffrey Starks. With the blessing of congressional democrats, president Donald Trump named Stark to replace Mignon Clyburn, who times out of her seat on the commission at the end of this month. Clyburn earlier announced she was retiring from the FCC and wouldn’t seek reappointment.

Besides being a democrat – which is required to fill Clyburn’s seat – Starks is a former federal prosecutor and is currently an assistant chief in the FCC’s enforcement bureau. According to Politico.com Starks “was first brought to the FCC from the Justice Department in 2015 to tackle one of the agency’s ‘thorniest political issues’… waste, fraud, and abuse in universal service fund programs”.

In other words, Starks is a relative newcomer to telecommunications policy. He’s worked as a lawyer and as a legislative aide, including what Politico.com describes as “staff to the Illinois state Democrats — including a then-little-known state senator by the name of Barack Obama”.

Judging by the muted reaction of his presumed new colleagues, Starks is also a relative unknown within the FCC. Jessica Rosenworcel, the other democratic commissioner, said simply “he will be a welcome addition”. Republicans were similarly polite and discreet in their comments, with Michael O’Rielly ’fessing up and saying “I haven’t had a great deal of interactions with Mr. Starks…I look forward to getting to know him”.

Starks will be joining the FCC at a critical time. The repeal of network neutrality rules takes effect on Monday, assuming courts or congress don’t intervene, and an industry wish list of additional anti-competitive regulatory weed whacking is queued up for review in the coming year. His nomination is likely to sail through confirmation – senators traditionally defer to each other when partisan nominations are involved. The FCC is structured so that it has three members from the party occupying the white house and two from the other. Starks can’t take his seat until the formal vote happens, though.

FCC allows more time to debate the death of independent ISPs

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An attempt by incumbent telephone companies to cut off competitors’ access to leased lines was slowed down a bit by the Federal Communications Commission on Friday. The deadline for reviewing a request by telco lobbyists that has the potential for killing off many, if not most, independent Internet service providers was extended by two months.

USTelecom, a lobbying front for big telcos, such as AT&T and Frontier Communications, as well as small incumbents, asked the FCC to eliminate rules that require telcos to lease copper DSL circuits and other facilities on a wholesale basis to “competitive local exchange carriers” (CLECs). The lobbyists invoked a fast track procedure – a petition for forbearance – that skates around some of the FCC’s usual due process when major decisions are made.

It would be a major decision. Without wholesale access to telco copper, most independent ISPs, which typically register as CLECs, would be left without a wireline pathway to subscribers.

The FCC is still considering a motion made by another lobbying group, Incompas, which represents a variety of content, equipment and independent telecoms companies. It asked the FCC to simply dismiss USTelecom’s petition, because it didn’t include the complete set of back up information that the fast track process requires.

The California Public Utilities Commission seconded that request, at least to the extent that “all of the data USTelecom relies on to support its petition…must be in the record”. Yesterday, Central Coast Broadband Consortium (CCBC) filed a letter with the FCC, also asking it to toss out USTelecom’s maneuver

In its petition, USTelecom proposes a radical overhaul of telephone industry regulation. Extraordinary conclusions require extraordinary evidence. USTelecom’s petition3 is a mundane recitation of self-interested opinion backed by the barest summary of cherry picked data. Full disclosure of all underlying data is essential for proper consideration of its request.

Full disclosure: I drafted and filed the CCBC’s letter.

Additional information and comments are now due on 6 August 2018, with rebuttals due a month after that.

Priority lanes the top priority for big ISPs, when net neutrality ends

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When the FCC’s repeal of network neutrality rules takes effect, as is likely, a week from tomorrow on 11 June 2018, you can expect the big Internet service providers to move slowly toward paid prioritisation. The moment they think they can get away with it, they’ll begin selling fast lanes to online content and service companies (edge providers, as they’re called) and giving their in-house content the same boost.

Paid prioritisation, throttling and blocking are three “bright line” practices that the 2015 FCC order banned, and they’re all interrelated. The technical details are different, but the result is the same: some traffic goes first, some traffic goes last.

Throttling and blocking – slowing down or completely stopping less profitable traffic – probably won’t happen. It’s unnecessary. If, say, Netflix pays AT&T to clear a path for its video traffic, then, say, YouTube ends up in the slow lane by default. Unless YouTube also writes AT&T a big, fat check. It’s a heads I win, tails you lose business proposition for big ISPs.

That’s why lobbyists speaking on behalf of AT&T, Comcast, Charter Communications and Frontier Communications are waving sacks of cash arguing so eloquently in Sacramento, hoping to stop the California legislature from banning paid prioritisation.

The winners will be the ISPs with the most market share – Comcast, Charter, AT&T and Verizon. Big, established web platforms like Netflix, Google and Facebook will also benefit. They can bear the cost of paid prioritisation. New, innovative and competitive companies will be at a distinct disadvantage. The Internet will no longer be an even playing field where small companies can successfully challenge the big ones simply by offering a superior service to consumers.

Back in the day, that’s how two small start ups – Google and Facebook – took on the market leaders – Yahoo and My Space – and won. Paid prioritisation puts market controlling power back in the hands of a relative few companies. It’ll be a return to the managed content business of the 1980s and 1990s.

Telcos ask FCC to kill broadband competition

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Wireline telephone companies, big and small, don’t want to be forced to share their lines with competitors. So last month, their lobbying front in Washington, D.C. – USTelecom – asked the Federal Communications Commission to scrap rules that require them to sell wholesale lines and other services to smaller companies that don’t own infrastructure.

These competitive local exchange carriers (CLECs) resell those services to retail customers, usually after adding their own equipment or other resources to the mix. You might not think of them as competing telephone companies, though. These days, they lease copper lines to provide Internet service, most commonly via some flavor of DSL, but also using other, more advanced technologies. Competitive, independent Internet service providers would be a better label.

USTelecom is using a fast track procedure called a petition for forbearance. If the petition is “complete as filed” – in other words, includes all the supporting data behind the request – then the FCC has 15 months to accept or reject it. If the clock runs out, it’s automatically granted. So the FCC tends to set short deadlines for public comments. In this case, the FCC allowed about a month for opponents and supporters to weigh in, and another two weeks for rebuttals.

That’s an awful short time for such a major decision. If the FCC goes along with the incumbent telcos’ request, it will put a lot of CLECs out of business, and dramatically change the competitive landscape, such as it is, for broadband service.

There’s another problem: the rules requiring telcos to lease out DSL and other broadband-ready lines on a wholesale basis are really telephone rules, designed to create a competitive market of sorts for POTS – plain, old telephone service. USTelecom is correctly claiming that fewer and fewer people are using POTS, preferring (or at least accepting) mobile phones and VoIP (voice over Internet protocol) service delivered via unregulated landlines as a substitute. If it so chooses, the FCC can kill an entire sector of the broadband market by simply accepting USTelecom’s argument that legacy POTS doesn’t matter anymore.

Comments on USTelecom’s petition are due next Thursday, and rebuttals two weeks after that. The California Public Utilities Commission will file comments – California law requires it – but it’s requesting a three month extension to gather information from telcos. As a memo adopted by the commission yesterday puts it, “contrary to what USTelecom argues, the effect might be to freeze the smaller…CLECs out of a number of markets”.

Other groups are similarly asking for more time, and challenging the completeness of USTelecom’s filing – it’s long on rhetoric and simple graphs, but lacks the kind of detailed data one might wish the FCC to examine.

Assuming, of course, that the FCC hasn’t already made up its mind.

Net neutrality clears California senate on party line vote

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The future of network neutrality is now in the hands of the California assembly. Yesterday, the California senate approved senate bill 822, authored by Scott Weiner (D – San Francisco) on a party line vote. It bakes net neutrality principles into California consumer protection law, and gives both contingency fee trial lawyers and the California attorney general the authority to sue Internet service providers that don’t comply.

The language approved by the California senate reinstates the three “bright line” bans imposed by the FCC in 2015 and then overturned late last year: no blocking, throttling or paid prioritisation. And it adds a fourth – zero rating – to the list.

State and local agencies would also be required to buy Internet service from providers that abide by those rules, unless it’s in “a geographical area where Internet access services are only available from a single broadband Internet access service provider”. The net neutrality purchasing requirement applies to fixed and mobile services alike, and extends to any broadband purchases paid for with California taxpayers’ money.

Strong as it may seem now, SB 822 was watered down by the industry-friendly senate energy, utilities and communications committee – it won’t explicitly apply to broadband projects subsidised by the state and it won’t add net neutrality obligations to cable franchise requirements.

SB 822 now joins SB 460 in the California assembly’s in-box. SB 460 is carried by Kevin De Leon (D – Los Angeles), until recently the senate majority leader and now a candidate for the U.S. senate, challenging fellow democrat and incumbent U.S. senator Diane Feinstein. His bill was approved by the California senate on a similar party line vote and then stalled in the assembly. De Leon’s bill is the weaker of the two – among other differences, he would allow zero rating and includes fewer enforcement mechanisms.

The likeliest scenario is that one bill will be folded into the other. Which bill survives – and which senator gets the spotlight – could depend on the results of Tuesday’s primary. If De Leon ends up in a run off with Feinstein in November, he’ll need a mountain of name recognition and cash, and his colleagues in the legislature might be inclined to help him get it.

Net neutrality bill gets a big green light in the California senate

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A California network neutrality revival bill got the blessing of California senate leaders, and now heads to a floor vote. Senate bill 822, authored by Scott Weiner (D – San Francisco), was endorsed by the senate appropriations committee on a pro forma party line vote on Friday. It would add blocking, ,throttling, paid prioritisation and zero rating to the list of unfair practices banned by California consumer protection law. It would also require state and local agencies in California to buy Internet service only from providers who abide by net neutrality principles.

Bills that spend money or add costs have to be reviewed by fiscal committees before going on to a full vote by either the California senate or assembly. Typically – and this year was typical – those committees hold the bills until the last possible day, and then release the ones that have sufficient political muscle behind them. The rest die a quiet death, without anyone having to take heat for a no vote.

The casualty list includes assembly bill 2166, by assemblywoman Anna Caballero (D – Salinas), that would have set up agricultural technology programs and required county agriculture commissioners to track Internet availability in rural communities.

Likewise, AB 2431, by assemblywoman Shirley Weber (D – San Diego), was spiked. Although it was watered down as moved through committee reviews, the basic idea behind it was to allow school districts to file claims for “intervenor compensation” at the California Public Utilities Commission. California law allows outside groups to jump in on cases under review by the CPUC, and forces regulated companies to reimburse them for their costs. It can be a gold mine for lawyers and consultants, whose billable hours often run well into the six figure range. Giving them another way to cash in would add even more costs to utility bills and drag out already long and needlessly complicated proceedings.

U.S. senate looks at mobile broadband service standard for rural areas

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The Federal Communications Commission will set a national mobile broadband speed standard by running tests in the 20 largest metro areas in the U.S., if a bill that’s heading toward a full vote by the U.S. senate makes it into law. The goal is to establish a benchmark for judging whether or not there’s adequate mobile broadband service in rural communities.

Although the language is vague, the bill’s intent appears to be to use that new standard to decide where federal broadband subsidies will go.

The U.S. senate commerce, science and transportation committee approved senate bill 2418 last week, after its primary author, senator Maggie Hassan (D – New Hampshire), added language that requires the FCC to report back to congress every six months, on progress made toward ensuring…

Mobile broadband service available in rural areas is reasonably comparable to mobile broadband service provided in urban areas…

A rural area shall be considered underserved, with respect to mobile broadband service, if tests show that the average speed and signal strength of mobile broadband service available in the area do not meet or exceed the average speed and signal strength of mobile broadband service provided in the 20 most populous metropolitan statistical areas in the United States.

There is some uneasiness about the bill. The FCC’s minimum level for “advances services” capability is 25 Mbps download and 3 Mbps upload speeds. That applies to any type of broadband, wireline or wireless. The fear is that creating a mobile broadband standard based on urban service levels will water down that standard.

Anything is possible, but the FCC still uses 10 Mbps down/1 Mbps up as a minimum standard for subsidised rural service. There’s already a gap between what the FCC considers good enough for rural communities and what’s necessary for full access to the online world. And the FCC doesn’t reckon mobile broadband to be a substitute for high speed, fixed service. Maintaining the distinction between mobile and wireline service is good policy. So is upping the game for mobile users.