Tag Archives: fcc

The $2 trillion covid-19 stimulus bill is not a broadband bill, but it helps. A little

by Steve Blum • , , , ,

Salinas windmill cell site

Update, 27 March 2020: president Trump signed the bill, it’s a done deal.

Update, 27 March 2020: the U.S. house of representatives approved the bill, it now goes to president Trump.

A vote on the $2 trillion federal covid–19 stimulus bill is expected in the U.S. house of representatives later today, and president Trump says he’ll sign it immediately. I also found the full text of the bill, as published by the U.S. senate’s appropriations committee. Assuming it’s really the final-final version, it’s not going to do very much at all to fill the broadband gaps that separate many people, particularly in California’s rural counties, from the online business, education, health, information and entertainment services that we now rely on.

But there are a couple of sparks of good broadband news in the text. In the short term, it authorises the federal veterans affairs department to…

Enter into short-term agreements or contracts with telecommunications companies to provide temporary, complimentary or subsidized, fixed and mobile broadband services for the purposes of providing expanded mental health services to isolated veterans through telehealth or VA Video Connect.

It also pumps $50 million into grants to libraries (and museums) for “digital network access”, “internet accessible devices” and “technical support”, and waives matching fund requirements.

The bill doesn’t address the Federal Communications Commission’s E-rate program. There’s no extra money and no prescribed changes in eligibility, or allowed uses of existing funds.

The language that pumps an extra $200 million into the FCC’s telehealth subsidy program is flexible, though. The FCC will have a lot of discretion regarding how it spends the money. There are no significant changes to the Rural Utilities Service’s (RUS) ReConnect broadband infrastructure grant and loan program or its telehealth and distance learning subsidies, except of course for the extra money – $100 million for ReConnect and $25 million for telehealth/distance learning.

Long term, the bill will speed up the migration of health care and other essential services to online platforms. Legacy rules and bureaucratic inertia are a barrier to increased adoption of telehealth technology, so in several places the bill has language that, as one section puts it, is aimed at “encouraging use of telecommunications systems for home health services furnished during emergency period”. It also redefines the mission of some federal telehealth programs as, for example, funding “evidence-based projects that utilise telehealth technologies” instead of “projects to demonstrate how telehealth technologies can be used”.

In other words, stop screwing around with pilots and just go live.

Federal covid-19 stimulus package doesn’t seem to stimulate broadband, much

by Steve Blum • , , , ,

Frontier verizon pole santa barbara county 10oct2015

Even by Washington, D.C. standards, $2 trillion is a lot of money. By those same standards, though, $325 million isn’t much and that appears to be the extent of direct broadband assistance in the $2 trillion covid–19 “stimulus” bill approved by the U.S. senate late last night. If there’s indirect broadband help, it’s buried in the bill’s yet-to-be-published text.

According to a summary obtained by Bloomberg Law yesterday, the bill adds $100 million to a broadband infrastructure program run by the federal agriculture department’s Rural Utilities Service (RUS), as well as $200 million to the Federal Communications Commission’s telehealth subsidy kitty and $25 million for a telehealth and distance learning program, also managed by RUS. That’s not the final word, of course. We’ll have to wait for the full text of the bill to surface before we know what’s in it.

There’s no extra money for the FCC’s E-rate program, which pays for broadband service to schools and libraries. That’s a disappointment for many, but I’ll reserve judgement until I see the actual bill. If, as has been urged, it loosens restrictions on how the money that’s already in the program can be spent, then it’ll be an immediate win. Under current rules, infrastructure and bandwidth bought through the E-rate program can’t be opened up to the public. Just taking that restriction off, even temporarily, could help close the gap between broadband haves in California’s urban areas and the have nots in rural communities. If it doesn’t do at least that much then, yeah, it’s a disappointment.

The RUS infrastructure money will go into the ReConnect program, which pays for new broadband infrastructure in rural areas. It probably won’t be much help to California, though. It’s designed for the business models and demographics of the midwest and south, and so far hasn’t funded any systems here. But it’ll help the people it’ll help, and to that extent it’s well timed. The application deadline for the current round of grants is next Tuesday, 31 March 2020, which means there should be plenty of project proposals that can be funded immediately.

The next step for the bill is the U.S. house of representatives.

FCC’s go it alone broadband subsidies burn state programs, commissioners say

by Steve Blum • , , , ,

Thirteen days before the November election, the Federal Communications Commission plans to give away $16 billion of subsidies to broadband service providers who can deliver at least 25 Mbps download and 3 Mbps upload speeds to census blocks that lack it. Commissioners voted last week to publish the proposed 22 October 2020 date to commence a reverse auction to determine who gets those subsidies, and ask for comments on a variety of technical issues that have to be sewn up before the bidding begins.

The vote was partially unanimous, but mostly split along party lines, with the two democratic commissioners, Jessica Rosenworcel and Geoffrey Starks, objecting to various aspects of the plan, including particularly the timeline.

Rosenworcel said “this Rural Digital Opportunity Fund [RDOF] looks more like publicity stunt than policy”, but…

To do this right, we also need to acknowledge that we are not going to do it on our own. We need to work with state and local authorities and not fight their efforts to help bring broadband to their communities. But that’s not what we do here. In fact, last month in a batch of last-minute changes, the FCC decided that the Rural Digital Opportunity Fund would not be available in places where states have their own programs. By some counts, that’s as many as 30 states. That’s crazy and we have no idea how it will play out on the ground. We should be encouraging states to work with us not penalizing them for their efforts to bring broadband to communities that are struggling. We have this exactly backwards.

Starks also called for the FCC to re-do its January decision setting out eligibility and other rules for the RDOF program, this time with input from states, like California, that have their own broadband subsidy programs.

The president of the California Public Utilities Commission, Marybel Batjer, asked for that opportunity in a letter she sent to the FCC in January, but it was ignored. The final version of the FCC’s RDOF rules don’t lock out Californian communities with the pitifully slow broadband service levels that legislators adopted in 2017 following massive cash payments hard lobbying by AT&T, Frontier Communications and the cable industry, but considerable work is needed to figure out how to maximise the benefit of both federal and California subsidies.

FCC didn’t succeed in blocking San Francisco’s open access broadband law

by Steve Blum • , , , ,

San francisco skyline 625

San Francisco’s open access rules for broadband in multi-tenant buildings is alive and well, according to a local independent Internet service provider. That’s despite the Federal Communications Commission’s determination to preempt the ordinance passed by San Francisco supervisors in 2016. It requires landlords to allow any ISP access to buildings, regardless of whether or not an exclusivity contract is in place.

In an opinion piece published in the San Francisco Examiner, Preston Rhea, the director of engineering for the policy program at broadband provider Monkeybrains, says that tenants and ISPs are still using the ordinance as leverage to pry open building doors…

Monkeybrains’ experience in the months since the FCC’s rulemaking indicates that [the San Francisco broadband access ordinance] is intact and operating as intended. Landlords in San Francisco are opening their doors to competition from alternative ISPs in their buildings, usually without legal proceedings.

Since the FCC’s rulemaking in July, Monkeybrains has used the process defined in [the ordinance] to legally provide notice to landlords with ISP exclusivity agreements that their tenants want Monkeybrains service in the rare case that they do not welcome us through a regular service agreement. The same lawyers who advised the Multifamily Broadband Council to demand the FCC take action against [the ordinance] are now guiding their clients to accommodate our reasonable requests for access to their buildings. Monkeybrains has healthy subscription rates and a productive relationship with building management in these properties.

Broadband exclusivity contracts are controversial. ISPs will pay landlords – sometimes more than $10,000 a year, according to Rhea – to prevent competitors from serving building tenants. Although the technical details of how to make it work are messy, San Francisco’s ordinance essentially says decisions about who to buy broadband service from are in the hands of the end user, not landlords or other middlemen.

The legal fight over the ordinance and the FCC’s attempt to, at least, partially preempt it continues. The City and County of San Francisco is appealing to the federal ninth circuit appellate court, which is a process that can take years to resolve.

FCC asks for limited net neutrality comments, but Rosenworcel says “make noise”

by Steve Blum • , , , ,

The Federal Communications Commission will tweak its network neutrality rules, such as they are, to answer objections made by the federal appeals court based in Washington, D.C. last year. That court – aka the D.C. circuit – largely upheld the FCC’s 2017 repeal of network neutrality rules, but sent a few bits back to the agency for more work and threw out a blanket preemption of state and local regulations.

In a notice issued earlier this week, the FCC asked for comments on the public safety, lifeline and pole attachment issues flagged by the D.C. circuit. The FCC has to figure out how to square its declaration that broadband isn’t a telecommunications service with its utility pole regulations that, seemingly, limit attachment privileges to telecoms companies. It’s looking for public comment on, among other things, whether “broadband-only providers” will still have “access to poles”.

Limited or not, commissioner Jessica Rosenworcel, a democrat, said network neutrality advocates should respond to the FCC’s request for comments

Today, the FCC is seeking comment on how best to move forward. My advice? The American public should raise their voices and let Washington know how important an open internet is for every piece of our civic and commercial lives. The agency wrongfully gave broadband providers the power to block websites, throttle services, and censor online content. The fight for an open internet is not over. It’s time to make noise.”

The FCC’s authority over utility pole attachments doesn’t extend to California, or to other states that have established their own regulations. The California Public Utilities Commission will have to sort those issues out here.

California also has its own network neutrality rules. Those are on hold until all the federal court challenges are settled. It’s a done deal at the appellate level, but the organisations that challenged the FCC’s net neutrality repeal can make a final appeal to the federal supreme court. The deadline for doing that is still several weeks away.

FCC revises subsidy rules, won’t zonk California because of our low broadband standards

by Steve Blum • , , , ,

Monty hall

The Federal Communications Commission approved a small do-over to the rules for its new broadband subsidy program, the Rural Digital Opportunity Fund (RDOF). Instead of blocking subsidies to any area where state broadband dollars are being spent, it will only do so where the money is paying for service at a minimum of 25 Mbps download and 3 Mbps upload speeds.

That’s good new for California. Our primary broadband subsidy program – the California Advanced Services Fund (CASF) – deems communities with broadband at the achingly slow rate of 6 Mbps down/1 Mbps up as adequately served, and only requires grant recipients who build infrastructure with state money to hit the barely better speed of 10 Mbps down/1 Mbps up.

As originally written, the FCC’s decision could have been read as writing off CASF-funded communities with those speeds. Democratic commissioner Geoffrey Starks certainly thought so, and called out the problem before the FCC voted last month. But FCC rules allow the text of a decision to be tweaked even after it’s approved. In his final comments, Starks said the FCC republican majority had a change of heart…

I received notice that the Report and Order we had voted had been revised by the Chairman in response to the concerns I raised…the post-adoption revision approved by the majority was changed to read:

In addition, we will exclude those census blocks which have been identified as having been awarded funding through the U.S. Department of Agriculture’s ReConnect Program, or awarded funding through other similar federal or state broadband subsidy programs to provide 25/3 Mbps or better service. This is consistent with our overarching goal of ensuring that finite universal service support is awarded in an efficient and cost- effective manner and does not go toward overbuilding areas that already have service.

The FCC will vote again later this month on the tentative date of 22 October 2020 to begin a reverse auction to distribute the initial $16 billion of RDOF subsidies, even earlier than originally planned. That’s not so wonderful for California. The president of the California Public Utilities Commission, Marybel Batjer, requested a delay to give California time to get its broadband subsidy act together. The FCC doesn’t plan to wait.

FCC documents:
FCC report and order, Rural Digital Opportunity Fund, published 7 February 2020
FCC public notice, Rural Digital Opportunity Fund, published 7 February 2020

FCC commissioner statements, 7 February 2020:
Geoffrey Starks
Ajit Pai
Jessica Rosenworcel
Michael O’Rielly
Brendan Carr

FCC’s $270 pole rental limit for wireless attachments might be “arbitrary and capricious”, appellate judge says

by Steve Blum • , , , ,

Los angeles streetlight cell 1 23oct2019

Federal appeals court judges hearing the challenge brought by local governments to the Federal Communications Commission’s 2018 preemption of ownership and control of street lights tried to get an FCC lawyer to explain how the commission settled on $270 as the allowable annual pole rental limit. The attorney, Scott Noveck, couldn’t oblige judges Jay Bybee and Mary Schroeder…

Bybee: I’d still like you to get to how you get to the $270.

Novek: So your honor, what I believe happened is that the commission took a look at various state small cell bills…

Bybee: It’s interesting, counsel, that you just characterised it as ‘you believe’. Because there isn’t anything in the record that tells us what the commission did, other than look at bills that were pending in a number of states, mostly in the heartland, not on the coast.

Novek: I want to try to answer that, but I just want to say to preface that, that this is just a safe harbor. And this order would have been perfectly reasonable even without any safe harbor at all.

Schroeder: When you say safe harbor, what do you mean? Do you mean that if it’s below that there’s no problem with it?

Novek: So, what I think what the commission was doing here was recognising that there exists a certain level of fees below which the fees are so likely to pass muster, they’re so likely to be within what the actual costs are, that it wouldn’t make sense to be expending resources on litigating those…But nothing at all precludes localities from charging higher fees where their costs are higher.

Bybee: Does the commission have an obligation to explain why it chose $270 as opposed to, let’s say, $250 or $300?

Novek: Well, I do think that at that point you’re in the area of paradigmatic line drawing, where agencies, I think, are at their greatest deference.

Bybee: They could have chosen $200 or $400 – that’s significant, isn’t it?

Novek: Your honor, I don’t think that this was, um, something that we were able to calculate with mathematical precision…

Bybee: You can calculate it with mathematical approximation. I don’t even see the approximation.

Novek: So, what the commission did here…

Bybee: The numbers that are in the bills that the commission relied on…are in the range of about $100. So the $270 appears – I mean, it may be generous for the cities, and maybe it was out of an abundance of caution. I’m just trying to figure out whether they just drew a number out of a hat, which might make it arbitrary and capricious.

The $270 figure originally came from lobbyists for mobile carriers, such as AT&T, Verizon, T-Mobile and Sprint. In 2017, they convinced California lawmakers – whom they and their colleagues influence with millions of dollars in payments – to enact a similar limit, which was vetoed by governor Jerry Brown.

The challenge to the FCC’s 2018 preemption is now in the hands of the three judges from the federal ninth appellate circuit, who heard the case last week in Pasadena. Their decision is likely to come sometime in the next three to six months.

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

FCC’s rural 5G justification for urban wireless preemption is comfort to AT&T but not to Fresno, appeals court told

by Steve Blum • , , , ,

Ninth circuit oral argument pole preemption 10feb2020

Federal appellate judges drilled down into arguments made by local governments and the Federal Communications Commission on Monday, as they considered a challenge to the FCC’s 2018 decision to cap rental rates for locally owned street light poles and other assets in the public right of way, and effectively give mobile carriers unfettered use of public property.

One justification for this preemption of local property ownership was that if big cities with big potential for subscriber revenue charge high fees, then carriers like AT&T and Verizon won’t have money left over to spend in less profitable small cities and rural communities. That prompted a question from judge Jay Bybee about whose rights and whose benefits are being protected…

So the FCC’s theory is that the reason we’re not going to allow costs above a certain level – anything above costs – is prohibited and preempted is because, the theory is, that the carriers could then take that money and invest in rural areas, other cities and so forth.

So if the City of Los Angeles agrees to $400 – the city says it’s $400, it’s our cost – and the carriers all agree, because they’re very anxious to get into Los Angeles immediately, and the City of Fresno comes and says ‘we don’t think it’s above $300’, does the City of Fresno have the right to bring an action, because these carriers are being slow to develop 5G in Fresno?

Joseph Van Eaton, with the Best, Best and Krieger law firm, which represents many cities in California and elsewhere, replied…

No, in fact that’s one of the flaws, the basic flaw in this whole cross subsidy argument, because that’s what this really is, that carriers will take money saved in Los Angeles and invest it in an area that’s not now profitable.

There’s no economic theory that supports that idea. The whole universal service fund is based on the idea that a rational investor will make money where they can make money and then they don’t take good money and pour it into an area where it’s not profitable out of the goodness of their hearts. That’s why we actually have evidence where Lincoln, Nebraska dropped the fee to $95 and said ‘all you have to do is build out these less profitable areas’ and they got no takers.

There’s no evidence that cross subsidy actually results in the impacts, effects the FCC has, and certainly the FCC doesn’t require it, and it doesn’t give anyone any enforceable right to say ’if you’re saving money in LA, you gotta come to our community".

All three judges asked questions of both the FCC and local government challengers during the hearing in Pasadena. Conventional wisdom is that questions asked aren’t a good guide to what judges are thinking – they might be sceptical, or they might be floating conclusions that they’re leaning towards. We’ll have to wait for them to issue their ruling, which is probably three to six months away.

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

FCC tells appeals court if electric or cable companies can install “larger, uglier, blighted” equipment on poles, then wireless carriers can too

by Steve Blum • , , , ,

Small cell olympic blvd 22oct2019

The Federal Communications Commission defended its 2018 preemption of local property ownership and permitting authority in front of a panel of three federal appeals court judges in Pasadena yesterday. Its lawyers faced some pointed questions from the judges.

FCC attorney Scott Noveck tried to dance around the reality of the FCC’s preemption order and claim that it really wasn’t doing much at all, particularly in regards to limits on the aesthetic requirements that cities can impose on wireless facilities. Judge Daniel Bress didn’t seem convinced…

Bress: The other side has raised this point, that when you just compare the standards – the one in the small cell order as compared to the one in the statute – there’s some possible misalignment, right, where it says no more burdensome, which would suggest parity, whereas the statute suggests actually there’s some amount of discrimination that would be allowed?"

Noveck: I think the order suggests parity among similarly situated infrastructure, which I think brings those into alignment.

Bress: What does that mean?

Noveck: Well, so for instance, the problem we have here sometimes, you have times when you have, say, cable equipment or electrical equipment, and what the record shows is that in many localities they were imposing very burdensome requirements on wireless equipment that might be smaller and less, um, more unobtrusive than similar equipment you might see on a utility pole or on a pole that was being used to provide cable service, was being used to provide electrical service but, for whatever reasons, localities were subjecting the wireless carriers to far more onerous requirements. So the non-discrimination principle here is just saying that if you are claiming that small cells need to meet some burdensome aesthetic requirements, but you’re allowing other utilities to put larger, uglier, blighted infrastructure on the same poles, it’s hard to think that this is a legitimate aesthetic requirement you’re imposing.

Noveck was trying to create a false equivalence between electrical equipment, such as transformers, that are installed on utility poles, which are often placed as far out of view as practicable, and wireless equipment placed on street light poles which, by their very nature, are placed where everyone can see them. Bress didn’t seem convinced, but that’s not necessarily his thinking – appeals court judges are notoriously (and properly) hard to read. All we can do now is wait for a ruling. There’s no particular timeline for that, but three to six months is typical.

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

Game on today, as cities take on FCC in court over pole ownership preemption

by Steve Blum • , , , ,

Downtown salinas

Local ownership of street light poles and other facilities planted in the public right of way is at stake, as lawyers for dozens of cities and counties and the Federal Communications Commission square off in a Pasadena court room later this morning.

A panel of three federal appellate court judges will hear arguments about why, or why not, the FCC has the authority to tell local agencies how much they can charge mobile carriers to attach equipment to their poles, and to largely replace negotiated rental contracts with simple, non-discretionary permits. Other issues, such as access to utility poles (which fall under different laws and regulations) and road maintenance policies that prohibit digging when the danger of freeze/thaw damage is greatest, will also be taken up.

In 2018, the FCC capped the rental rate that cities can charge wireless companies for pole attachments at $270 per year. That’s in contrast to negotiated market rate deals that often top $1,000 per year and sometimes go much higher.

If they prevail, the FCC’s republican majority is ready to double down on preemptions of state and local authority over right of way management and permits for wireless facilities. At the CES show in Las Vegas last month, republican commissioner Michael O’Rielly was defiant. He said local control is “problematic” and the FCC’s response “does come with the P-word…it requires preemption. And that is something the commission is going to have to continue to do”.

Another federal appeals court, based in Washington, D.C., might have made O’Rielly’s dream less likely. In a decision that otherwise upheld the FCC’s repeal of network neutrality rules, the judges ruled that the commission overstepped its authority when it tried to preempt any and all regulation of broadband service by states. If the FCC wants to big foot state governments, it has to wait until there’s an actual regulation to preempt, and then come up with a specific basis for doing it.