Tag Archives: fcc

FCC chokes on Digital Path’s map spam, CPUC still chewing on it as broadband subsidy decisions for rural California are made

by Steve Blum • , , , ,

Spam

Nearly 426,000 California “locations” – homes, businesses, institutions – are eligible for the Federal Communications Commission’s $16 billion broadband subsidy auction in October. The California Public Utilities Commission has about $145 million for broadband infrastructure grants, primarily in rural communities. Both agencies have to sort out challenges from incumbent Internet service providers that want to block subsidies in order to protect their turf, as well as decide where to spend subsidy dollars.

In theory, the FCC’s Rural Digital Opportunity Fund (RDOF) could bring faster, cheaper and more reliable broadband to as many as 8 million rural Californians, because the program’s rules require ISPs to serve everyone in a given area, whether eligible for subsidies or not. It won’t be that many in practice, but it will be more than some rural Internet service providers hoped. Half a dozen wireless ISPs (WISPs) and several wireline incumbents tried to maintain their monopoly hold on large swaths of rural California by filing dubious, if not out right bogus, claims that they provide adequate service in tens of thousands of census blocks.

At the top of the list is Digital Path, a WISP that operates in many rural Californian communities with a base in the northeast of the state. It challenged more census blocks than any other ISP in the U.S.

Digital Path gave the FCC a list of 40,000 census blocks where it claims to offer service at a minimum of 25 Mbps download/3 Mbps upload speeds to nearly a million Californians. That’s fast enough that those census blocks wouldn’t be eligible for RDOF money.

As it turns out, the FCC wasn’t planning to offer subsidies in at least 35,000 of those blocks. Of the remaining 5,000 blocks, the FCC only deemed Digital Path’s map spam valid in 1,300 blocks. Even so, that was enough to eliminate about 22,000 mostly rural Californians from potential federally funded broadband service upgrades.

Digital Path’s federal filing could – should – complicate, and maybe kill, its own requests for California broadband subsidies. In May, it submitted 11 applications asking for a total of $4.8 million from the California Advanced Services Fund (CASF). To get CASF money, applicants are required to assert that each census block where they want to build is eligible for the program. Which means it lacks broadband service at a minimum of 6 Mbps download and 1 Mbps upload speeds.

Of the 492 census blocks where Digital Path is applying for CASF money, 419 census blocks are included in Digital Path’s federal challenge.

In other words, in April Digital Path told the FCC it offered broadband service at a minimum of 25 Mbps down/3 Mbps in those 419 census blocks, then a month later told the CPUC those same blocks were eligible for CASF subsidies because the available service was slower than 6 Mbps down/1 Mbps up. That assertion may have been based on the CPUC’s online eligibility map, which would not have included the service reports that Digital Path submitted to the FCC four weeks prior. Apparently, the “continuing obligation to make corrections” to service reports that Digital Path cited in its FCC challenge letter doesn’t extend to the CPUC.

In June, Digital Path made another attempt to prevent potential competitors from using subsidies to provide faster, cheaper and/or more reliable service. It filed another batch of broadband speed claims with the CPUC, challenging 12 projects proposed for CASF grants – nearly twice as many as the next most prolific challenger, Frontier Communications (which has its own credibility problems).

With $533 million in CASF grant proposals competing for $145 million in available funds, legitimate challenges will play a role in determining who wins. Character should count, too.

The Central Coast Broadband Consortium (CCBC) supported Charter’s San Benito County proposal and assisted Etheric Networks with its application. The Connected Capital Area Broadband Consortium (CCABC) assisted DigitalPath. I assisted the CCBC and the CCABC, and also kibitzed on other projects. I also have opinions about what the CASF program should be (in case you haven’t noticed). I’m not a disinterested commentator. Take it for what it’s worth.

Frontier’s “pervasive lack of credibility” drives FCC’s rejection of its service claims; CPUC urged to ignore its “high level rhetoric and promises”

by Steve Blum • , , , ,

There’s rapidly increasing skepticism in San Francisco and Washington, D.C. of Frontier Communications’ corporate honesty. Frontier was blasted in two separate agency actions in recent days: the California Public Utilities Commission’s review of its post bankruptcy plans and the Federal Communications Commission’s broadband subsidy auction, as it prepares to distribute the Rural Digital Opportunity Fund.

Challenges filed by incumbent broadband providers, aimed at blocking federal subsidies in their captive rural markets, were largely dismissed by the Federal Communications Commission last week. After reviewing tens of thousands of challenges in California alone, the FCC issued its verdict and published a new list of census blocks eligible for RDOF subsidies. In unusually blistering terms, the FCC dismissed Frontier’s claims it was providing adequate broadband service in 23,000 U.S. census blocks…

Given the numerous and significant concerns in the record regarding the validity of Frontier’s filing, including its own admission that it had misfiled its June 2019 data and then misfiled (again) the data for its challenge, and inconsistent explanations for its challenge, we conclude that taken together there is a pervasive lack of credibility and accordingly deny Frontier’s challenge regarding its deployment and decline to exclude those blocks from consideration for eligibility.

Frontier’s facile attempt to convince the CPUC to approve whatever settlement comes out of its New York bankruptcy proceeding on the basis of faith in its selfless devotion to the interests of Californians was similarly slammed in protests filed this week by a major telecoms union – the Communications Workers of America (CWA) – and three advocacy organisations, and CPUC staff.

CWA and the three organisations – TURN, the Greenlining Institute and the Center for Accessible Technology – pointed to the major role that Frontier plays in California’s telecoms market, and said the CPUC…

Has a statutory obligation to conduct a full analysis of the impact of this transaction that goes beyond a high level public interest review and to require [Frontier] to provide the Commission with more than high level rhetoric and promises.

They cited, among other things, Frontier’s failure to live up to promises made when it acquired Verizon’s decaying copper telephone systems in California and questioned its willingness to meet obligations attached to state subsidies, including money from the California Advanced Services Fund.

The CPUC’s quasi-independent public advocates office also asked for a full review, citing Frontier’s “unsubstantiated claims” and demanding specific plans for “network infrastructure investments, service quality and reliability improvements, consumer protections, including pricing, and broadband deployment”.

Frontier’s wish for quick and cursory CPUC approval by October is a forlorn hope.

California tops up federal broadband subsidy bids, as FCC trims RDOF eligibility list

by Steve Blum • , , , ,

Pouring wine

Californian communities lost potential broadband subsidy money last week, but might have gained some back yesterday. On Thursday, the Federal Communications Commission eliminated 48,000 “locations” – homes, businesses, community facilities – in what appears to be 3,100 census blocks from the preliminary eligibility list for the Rural Digital Opportunity Fund (RDOF), following a review of tens of thousands of challenges from incumbent broadband providers who wanted to freeze out potential competitors. I say “appears to be” because the FCC’s numbers don’t line up with census bureau stats – that discrepancy should be resolved eventually.

Yesterday, California governor Gavin Newsom signed assembly bill 82 into law. It waives restrictions on the California Advanced Services Fund (CASF) – California’s primary broadband infrastructure subsidy program – and allows the California Public Utilities Commission to add money from it to RDOF-funded projects.

A census block is eligible for RDOF money if it lacks broadband service at 25 Mbps download/3 Mbps upload speeds. CASF subsidies are usually restricted to census blocks without service at 6 Mbps down/1 Mbps up, which means that far fewer rural homes and communities are eligible. AB 82 allows CASF funds to be spent on projects that also receive RDOF money.

RDOF subsidies are awarded via a reverse auction. Broadband providers bid down the amount of money they’re willing to accept in exchange for offering a particular level of service in a given area. Putting CASF subsidies on the table allows Californian providers to bid lower and, it is hoped, win even more federal money that’ll be spent here.

Thursday’s changes mean about 10% of the locations are gone from the preliminary RDOF eligibility list that the FCC published in March. Because of the formulae used to calculate maximum subsidy amounts, only 6% of the maximum potential money is off the table. But the maximum doesn’t mean much. The ten year total reserve price for eligible census blocks in California dropped from $2.5 billion to $2.3 billion. In theory, all of that money could end up in California. In reality, it won’t – half or a little better is a more realistic expectation.

FCC limits on cell site expansion permits challenged by California cities

by Steve Blum • , , , ,

West sac cell site

California cities are pushing back against the tighter limits on wireless infrastructure permit reviews that the Federal Communications Commission approved in a party line vote earlier this month. Three cities in Los Angeles County – Glendora, Rancho Palos Verde and Torrance – and the California and Oregon leagues of cities filed a challenge to the FCC’s ruling with the San Francisco-based ninth circuit federal appeals court.

The FCC ruling said cities, or other local agencies, can’t delay starting a 60-day federal shot clock and can’t add aesthetic requirements when granting permit for expansions or other additions to cell sites and towers, or other wireless facilities, so long as the changes are within certain limits. In other words, when the work falls under what are usually called the “6409” rules, after the section federal law involved. The FCC said that the 60-day shot clock begins as soon as a wireless company takes the first step in a permit process, whether or not they’ve filed a formal application. If the shot clock expires, the permit is “deemed granted”.

The cities and associations filing the petition for review argued, as might be expected, that the FCC exceeded its authority…

The Commission’s new rules and significant changes to its existing rules unlawfully preempt local and state government authority promulgated without response to the arguments advanced by Petitioners in the record…

Petitioners seek review of the Ruling on the grounds that the Ruling is arbitrary, capricious, and an abuse of discretion.

The cities’ filed on Monday. I haven’t seen any other appeals from any other parts of the U.S. Assuming that’s the case, it’ll be handled by the ninth circuit, which is also considering a similar, but much larger, challenge to the FCC’s 2018 preemption of local ownership of city street light poles.

That case was heard in February, by three ninth circuit judges. There’s no particular timeline for a decision, but they’ve been working on it long enough that it could come at any time. Expect a similar journey of a couple of years for this latest appeal.

Wireless, DSL tech proposed for subsidised rural broadband will get extra scrutiny from FCC

by Steve Blum • , , ,

Clouseau 625

When the Federal Communications Commission last week approved application requirements and bidding procedures for the reverse auction it’ll use to distribute $16 billion in rural broadband subsidies, it toughened up language regarding performance claims for fixed wireless and DSL-based service. The final version of the rules builds on an earlier draft that was already highly sceptical of any potential claims that wireless or DSL technology could deliver gigabit level service – defined as 1,000 Mbps download and 500 Mbps upload speeds – on a consumer market basis.

The FCC plans to grill bidders making such claims…

We anticipate that Commission staff will benefit from having the opportunity to discuss network plans with each applicant through the Commission’s existing resubmission process. An applicant proposing to deploy fixed wireless and DSL technologies to offer Gigabit speeds and any engineers that assisted with the application must be prepared to engage in follow-up conference calls upon request with Commission staff to elaborate on their…responses with a particular focus on concerns raised in the record.

We retain maximum flexibility to take enforcement action based on the specifics of each circumstance. We do note that the base default [fine] we have already adopted for Auction 904 will be subject to adjustment upward or downward as appropriate…All applicants should conduct due diligence and consider seriously whether they will be able to meet the relevant public interest obligations before selecting performance tier and latency combinations in their applications.

Translation: put up or shut up. Or get whacked with thousands, perhaps tens of thousands, of dollars in fines.

Fixed wireless providers, particularly, will have to show how any gigabit service claims they make conform to the laws of physics. Or as the FCC puts it, they’ll have to answer challenging questions about…

Distance limitations, spectrum bands attributes, channel bandwidths requirements, backhaul and medium haul requirements, tower siting requirements, capacity constraints, required upstream speeds, required minimum monthly usage allowances, and other issues raised in the record.

The door also opened a crack to low earth orbit satellite systems, particularly SpaceX’s Starlink constellation. Instead of being barred from claiming low latency capability, they’ll also “face a substantial challenge” convincing FCC staff that they have it.

Rural Digital Opportunity Fund phase 1 auction Procedures public notice, 11 June 2020
Rural Digital Opportunity Fund auction technical guide, 10 June 2020

Tight limits on local review of cell site expansions just got tighter, as FCC widens preemptions

by Steve Blum • , , , ,

Marina cell sites 625

On a party line vote last week – republicans yes, democrats no – the Federal Communications Commission further preempted local government control over wireless facilities such as cell sites and towers. The ruling tightens enforcement of a 60-day shot clock for local permit approval of what it reckons to be minor modifications to a site. If time expires, the permit is "deemed granted. It also bans additional aesthetic requirements and widens a loophole that allows wireless companies to escape existing ones.

The first draft of the new rules was published last month, and despite a flood of objections from local governments, nothing much changed. The final version tweaks the definition of the trigger that starts the 60-day shot clock. It begins running when two things happen:

  1. An applicant “takes the first procedural step that the local jurisdiction requires”, which could be a meeting with staff to discuss the project, although the FCC considers the step taken when the company makes “a written request to schedule the meeting”. The same applies to things like community meetings or planning reviews – the 60 days starts ticking down as soon as the request for such is made.
  2. “The applicant submits written documentation showing that a proposed modification is an eligible facilities request” – in other words, is a minor collocation of transmission equipment on an existing structure, as defined by congress and the FCC. The local agency doesn’t have to buy off on the claim or consider the documentation complete. The company just has to file its arguments.

A tight limit on concealment requirements also got some minor editing, although it didn’t satisfy objections raised by local governments or commissioner Geoffrey Starks, a democrat. New concealment or stealthing measures can’t be imposed, and existing requirements can only be enforced if there is “express evidence in the record to demonstrate that a locality considered in its approval that a stealth design for a telecommunications facility would look like something else, such as a pine tree, flag pole, or chimney”. The new rules are not workable, Starks said in his dissent

In many cases, local governments approved sites years ago, well before passage of the Spectrum Act. Particularly for smaller cities, it’s unlikely that their decisions explain the intent behind a particular requirement affecting a site’s appearance. Yet today’s Declaratory Ruling states that, unless the regulator can provide express evidence in the record demonstrating that a requirement was intended to disguise the nature of the equipment as something other than a wireless facility, the local government must give streamlined treatment to any changes. Moreover, for changes in appearance that don’t disguise the nature of the equipment but merely make it harder to notice, the Declaratory Ruling establishes a standard that effectively preempts any requirement that the applicant claims it cannot reasonably meet…

Doing this via a Declaratory Ruling will place an undue burden on local governments that are unfamiliar with the Commission. A clerk in a small city may not realize that a proposed site modification will require her to review not only the Code of Federal Regulations but the language of this decision and our 2014 order.

The FCC’s decision also begins the next phase of its campaign to end local discretion over cell sites and other wireless facilities. It’s considering allowing companies to expand the boundaries of “an existing facility…up to 30 feet in any direction”, under the same shall approve within 60 days rule. It’s asking for public comments, but not offering much time – 20 days after the notice is published in the federal register, with reply comments due 30 days after that.

Declaratory Ruling and Notice of Proposed Rulemaking, Implementation of State and Local Governments’ Obligation to Approve Certain Wireless Facility Modification Requests, 9 June 2020

AT&T blows off net neutrality as it zero rates HBO Max

by Steve Blum • , , , ,

Marvin fire

AT&T is giving its HBO Max streaming service a free ride on its mobile broadband network. The bandwidth consumed by AT&T mobile customers while watching HBO Max programming won’t be counted against their monthly data caps. According to a story in The Verge by Nilay Patel, AT&T’s streaming competition won’t get the same zero rating treatment…

HBO Max, AT&T’s big bet on the future of streaming, will be excused from AT&T’s mobile data caps, while competing services like Netflix and Disney Plus will use up your data…

AT&T…confirmed to The Verge that HBO Max will be excused from the company’s traditional data caps and the soft data caps on unlimited plans.

The story goes on to say that AT&T offers other streaming platforms the opportunity to pay for the bandwidth their subscribers consume, but none have found the deal compelling enough to take it. It works for AT&T because it’s just taking money out of its HBO Now pocket and putting it into its AT&T mobile pocket.

Whether it’s a privilege it reserves for itself or one it sells to others, AT&T’s zero rating tactic is the kind of conduct that network neutrality rules are intended to stop. If there were network neutrality rules. The current Federal Communications Commission thinks zero rating and pretty much anything else AT&T does is just fine – that’s why the republican majority voted in 2017 to repeal the net neutrality rules established during the Obama administration.

It’s different in California, sorta. A law passed in 2018 bans “zero-rating some Internet content, applications, services, or devices in a category of Internet content, applications, services, or devices, but not the entire category”, or accepting payment to do so. Unfortunately that law – senate bill 822 – is on ice right now. California attorney general Xavier Becerra agreed not to enforce it while appeals of the FCC’s 2017 decision work their way through the federal courts.

A federal appeals court in Washington, D.C. refused in February to reconsider its earlier decision (mostly) upholding the FCC’s net neutrality rollback. The nominal 90-day deadline for taking it to the federal supreme court passed without action last month. The net neutrality battle could be back in California soon.

FCC skeptical about magic wireless solutions as it sets rules for rural broadband subsidy auction

by Steve Blum • , , ,

Magic radio 625

The Federal Communications Commission will push ahead with its plan to distribute $16 billion (of an eventual $20 billion total) in broadband subsidies via a reverse auction in late October. In a draft notice that will be finalised at its June meeting next week, the FCC lays out rules, procedures and standards for Internet service providers that want to submit bids for money from the Rural Digital Opportunity Fund. It also rejects a request from the California Public Utilities Commission to delay the auction for four months.

ISPs that plan to us magic radios or decrepit copper networks to deliver gigabit or other high performance level service will – correctly – face skepticism from the FCC…

While an applicant will be permitted to select the Gigabit performance tier in its application if it intends to use fixed wireless or DSL technologies…such applicants face a high burden to persuade Commission staff that it is reasonably capable of meeting the public interest obligations and thus qualified to bid for the Gigabit performance tier. Particularly for DSL services, we do not anticipate that an applicant using DSL technologies would be able to demonstrate that it is reasonably capable of offering a service that meets the Gigabit performance tier public interest obligations absent a hybrid approach that relies mostly on fiber. Likewise, given distance limitations, spectrum and infrastructure constraints, tower siting requirements, required upstream speeds, and required minimum monthly usage allowances, we expect it will be similarly challenging for a fixed wireless provider to make a case that it can offer a mass market service meeting the Gigabit performance tier public interest obligations…This is so especially for entities lacking an operational history of offering Gigabit service in rural areas. Accordingly, we expect that relatively few fixed wireless and DSL technologies will be able to meet the short-form requirements for bidding in the Gigabit performance tier.

Wireless and DSL-based bidders that want to try anyway have to submit detailed technical information, but the FCC warns them not to play games…

We remind potential applicants that they are certifying under penalty of perjury in their short-form applications that they are technically qualified to meet the public interest obligations for each performance tier and latency combination they select. The Commission may initiate enforcement proceedings against applicants that submit threadbare or wholly unrealistic technical showings.

Although eligibility is defined at the census block level, bidding will be done by census block group. A company that wins a bid for a given census block group will have to serve all the eligible locations within it. It’s a good choice from a Californian perspective. The alternative was to use census tracts, which are larger (i.e. are made up of multiple census block groups). That would have been fine for the homogenous midwestern plains, but rural California is more geographically, economically and demographically diverse and needs a more granular approach.

The final list of eligible census blocks and subsidy amounts hasn’t been published yet. Last week, the CPUC asked the FCC to disregard the long list of dubious challenges to census block eligibility submitted by ISPs that want to fence off large swaths of California from broadband upgrades so that they can continue to profit from the low performance, high cost service they offer to captive customers. The FCC is yet to respond.

The notice does a lot of other things. It details procedures for the 29 October 2020 auction and sets out a schedule leading up to it, starting with opening the registration window on 1 July 2020, and closing it on 15 July 2020. Application requirements – a short form before the auction and a long form for winners afterwards – is detailed, along with rules for the auction itself. The short form might not be all that short, though. The FCC will use it to initially “assess the likelihood that an applicant would not default”, with more intense due diligence coming after the auction.

Rural Digital Opportunity Fund phase 1 auction Procedures draft public notice, 19 May 2020

It became necessary to govern free speech to save it

by Steve Blum • , , ,

Trump 625

“It became necessary to destroy the town to save it”.

Unidentified U.S. army major to Associated Press reporter Peter Arnett, Bến Tre, Republic of South Vietnam, 7 February 1968.

The freedom to express and debate ideas is the foundation for all of our rights as a free people…It is the policy of the United States to foster clear ground rules promoting free and open debate on the internet. Prominent among the ground rules governing that debate is the immunity from liability created by section 230(c) of the Communications Decency Act.

U.S president Donald Trump, executive order signed 28 May 2020, Washington, D.C.

It’s tempting to dismiss yesterday’s executive order as just another tantrum that’ll be squashed by a federal judge almost as quickly as it’ll be forgotten. But there’s real danger in it, even if Trump is no longer president by this time next year. He’s asking the Federal Communications Commission to decide who is worthy of free speech and free press rights on the Internet, and who is not. That’s dangerous.

The impulse to perceive bias when a newspaper or broadcaster or online platform fails to fully appreciate the words and actions of self proclaimed political geniuses is as prevalent on the left as it is on the right. Accusations of bias are levelled at technology companies on a daily basis, from across the political spectrum. As are demands that government do something about it.

Giving any government agency leeway to think it’s responsible for ferreting out bias among public speakers or publishers – of any medium – is perilous enough under any circumstances, but it is catastrophic when the agency involved is as structurally political and as enmeshed in the basic infrastructure of our economy and polity as the FCC.

If you think that’s over the top, I suggest you take a look at what’s going in Hong Kong right now.

FCC draft ruling takes away more local control over wireless sites

by Steve Blum • , , , ,

Salinas windmill cell site

Pre-application requirements for some wireless facilities permits would be effectively banned by a draft ruling posted yesterday by the Federal Communications Commission. It would also expand limits on some antenna sizes and scale back concealment measures that some cities use to maintain aesthetic standards.

The draft declaratory ruling and notice of proposed rulemaking applies to some situations when mobile carriers and other wireless companies seek permission to add equipment to existing towers and the surrounding area. It’s sometimes referred to as the “6409” rule, after the section of federal law that it’s based on. I won’t try to explain it here. The flowchart below illustrates the complexity of federal and state restrictions on wireless permit processing. The box circled in blue is the particular FCC regulation involved. Click to get my white paper that tries to sort it all out.

In that set of circumstances, local governments have 60 days to approve a permit application or it’s “deemed granted”. Denying the permit application is not allowed. The FCC set those parameters in 2014 during the Obama administration, and since then wireless companies and local governments have been arguing about things like precise definitions of “separation from the nearest existing antenna” and what it takes to “defeat” concealment requirements. The FCC’s draft ruling addresses those issues, too.

When that 60-day shot clock begins is particularly contentious. For example, some cities require companies to consult with staff or neighborhood groups before permit applications can be filed. Others might require multiple permits from different city departments. Cities often take the position that the shot clock doesn’t begin until those preliminary steps are done and an actual (and complete) application is submitted.

Not so, says the FCC’s draft ruling: “an applicant has effectively submitted a request for approval that triggers the running of the shot clock when…the applicant takes the first procedural step that the local jurisdiction requires as part of its applicable regulatory review process” and documents that the facilities it proposes to install meet the 6409 rule’s criteria.

In other words, there’s no such thing as a pre-application period. Once a wireless company takes any required step, time starts running. And there’s only one shot clock per city. Once it’s triggered, every permit has to be approved in 60 days.

The FCC is scheduled to vote on the draft at its next meeting on 9 June 2020. There’s a window of opportunity to submit comments, but substantive changes are unlikely – although democrat and republican commissioners might quibble about details, there’s a long and strong history of bipartisan support for wireless permit streamlining at the FCC.