Tag Archives: fcc

Common carrier death watch begins in Washington, D.C.

As the Federal Communications Commission wrapped up its November weed whacking on Thursday, attention turned to the expected release of a draft decision that will overturn the Obama-era decision that classified broadband as a common carrier service. According to a Reuters story, it’s coming soon…

The head of the Federal Communications Commission is set to unveil plans next week for a final vote to reverse a landmark 2015 net neutrality order barring the blocking or slowing of web content, two people briefed on the plans said.

In May, the FCC voted 2–1 to advance Republican FCC Chairman Ajit Pai’s plan to withdraw the former Obama administration’s order reclassifying internet service providers as if they were utilities. Pai now plans to hold a final vote on the proposal at the FCC’s Dec. 14 meeting, the people said, and roll out details of the plans next week.

There are two separate issues: whether broadband is, and should be regulated as, a common carrier service, and should the FCC set out rules that require Internet service providers to treat all traffic the same. The two issues are linked, but not necessarily inseparable.

In 2010, the FCC made its first try at imposing network neutrality regulations, but it was nixed by a federal appeals court. The rationale was that net neutrality is a common carrier kind of rule, so that needed to come first. The decision left open the faint possibility that there might be a way to avoid common carrier status and still do net neutrality, but the FCC took the safe route the second time around.

It seems certain that FCC chair Ajit Pai will put a draft decision on the table that says broadband access is an information service, and not a telecoms service. That’ll take it out from under the common carrier – and common sense – umbrella. Whether he tries to keep some of the related network management and consumer protection rules in place anyway is an open question.

Expect an answer in the next few days.

FCC bases big decisions on small facts spooned out by big telecoms companies

The Federal Communications Commission jumped in on the side of Charter Communications in a dispute with the Minnesota Public Utilities Commission. The case was bumped to a federal appeals court – the MPUC lost the first round – and now the FCC has moved in to protect its turf.

The question is whether Minnesota can regulate voice over Internet protocol (VoIP) phone service the same way it does old style analog service. There’s a great article by Jon Brodkin in ArsTechnica that goes through the details of the case, so I won’t repeat it here.

My interest is in the insight I think the FCC’s arguments give into its thinking on whether or not broadband should be classified as a common carrier service, and if not, how does it regulate it, if at all?

The FCC says it hasn’t decided once and for all if VoIP is a common carrier service, but its skidding rationalisations in the Minnesota case and its draft decision rolling back restrictions on when telcos can replace copper service with wireless indicate that it’s happy to zero in on a microscopically literal interpretation of narrow circumstances when it suits a pre-determined outcome, and wave away any annoying facts to the contrary.

In the draft decision on wireline deployment the FCC would abandon what it calls the “functional test” – the practical and overall impact – when assessing infrastructure rollbacks, in favor of a far more narrow standard based on a provider’s own service descriptions. Extending that line of reasoning to VoIP, it doesn’t matter that it’s functionally indistinguishable from legacy service. What’s important is what Charter, in this case, says it is.

It’s a leap, but not an impossible one, to take it one step further and imagine the FCC applying that logic, such as it is, to broadband service.

The core function of broadband service is to transport bits between two points, as determined by the users on both ends. Internet service providers do that “without change in the form or content of the information as sent or received”, as the statutory definition of telecommunications service puts it. It should be a clear cut decision.

But in its draft wireline decision and its court filing in the Charter appeal, the FCC prefers to ignore a common sense reading of the facts in favor of swallowing the marketing claims of big telecoms companies hook, line and sinker. If there was any doubt as to whether the FCC will scrap broadband’s status as common carrier service, it’s gone now.

FCC broadband committee offers letter to Santa deployment advice

There was a mix of good and awful policy on the table last Thursday as the Federal Communication Commission’s broadband deployment advisory committee (BDAC) heard from its five working groups. The BDAC was created by Ajit Pai shortly after he got the nod to be Donald Trump’s FCC chairman. Its job is to offer advice on how to speed up broadband deployment by breaking down legal, regulatory and bureaucratic barriers. Although there are nuggets of sound policy to be found, what it came up with mostly reads like wish lists written by telecoms lobbyists.

The committee and working groups membership is top heavy with big (and mid sized) telecoms companies and their lobbyists, but there are some bright lights as well. Cities are represented, but by policy-level people, not by people with muni broadband or other industry expertise.

And it shows.

The five working groups dealt with competitive access to broadband infrastructure, model code for municipalities, model code for states, removing state and local regulatory barriers and streamlining federal siting. The results are, to put it kindly, uneven.

The worst showing was from the model code for states group. It pretty much wants to ban municipal broadband ventures, although instead of coming out and saying so, it recommends first running projects through a gauntlet of preferred options, including subsidising incumbents. Few muni broadband proposals would survive it. The state model code group also recommends preempting local ownership of broadband-relevant assets, including dark fiber. If a city owns dark fiber or light poles, private companies could commandeer them at will for a price far below market value.

The muni code group, on the other hand, had some worthy ideas about streamlining permit processes and, contrary to the state group, recommended local governments should maintain control of municipal property.

The working group looking at state and local regulatory barriers produced a lengthy indictment of the sins committed against broadband and wireless companies, and took an analytical, but sympathetic, look at federal preemption of pretty much anything that might upset a telecoms lobbyist.

There are many recommendations for streamlining federal processes, but the P word – preemption – didn’t come up. That would be unneighborly, I suppose. The group looking at competitive access focused primarily on pole attachment issues, with one touch make ready rules at the top of the list.

A few recommendations, mostly preliminary, were adopted by the full committee, with the meat of the proposals expected to get a full review in January. What happens after that – or even, before – is unclear, although if the the effusive reaction of commissioner Michael O’Rielly is any indication, the FCC majority will cherry pick the policy bits that support the positions they’ve espoused all along, and run with them.

Comcast asks FCC for privilege without responsibility

Comcast has joined Verizon in pushing the Federal Communications Commission to override state and local laws that might affect their business. In a required notice filed after a private meeting with FCC chair Ajit Pai’s top staffers, a lawyer for Comcast said they urged the FCC to overturn its 2015 decision to regulate broadband as a common carrier service, and to make sure that state and local governments didn’t try to pick up the slack…

At the meeting, we reiterated Comcast’s support for restoring its prior classification of broadband Internet access service (“BIAS”) as an interstate information service and reversing the 2015 decision to classify BIAS as a [common carrier] telecommunications service…

We also emphasized that the Commission’s order in this proceeding should include a clear, affirmative ruling that expressly confirms the primacy of federal law with respect to BIAS as an interstate information service, and that preempts state and local efforts to regulate BIAS either directly or indirectly.

Comcast and Verizon are worried about state initiatives like California’s assembly bill 375, which would have restored consumer privacy rules scrapped at the national level. It was eventually brought down by an all out attack by telecoms lobbyists who control millions of dollars of payments made to legislators in Sacramento. But the effort will, in all likelihood, be made again next year, and Comcast wants to head it off.

But it’s about more than just a few bills. If – when – the current FCC follows through on its promise to scrap broadband’s common carrier status, Internet service providers, like Comcast, will lose their existing exemption from consumer protection laws at both the state and federal level. Although it’s under challenge in a federal appeals court, that exemption basically puts the FCC in charge of regulating most aspects of common carrier telecoms services. Even the Federal Trade Commission can’t set business rules for common carriers.

Comcast likes the advantages, such as immunity from state and federal consumer laws, that come with a common carrier label. But it doesn’t want the common carrier obligations, such as net neutrality rules or FCC oversight, that follow. It would be reckless if the FCC accommodates them.

FCC misses night and day difference between lit and dark fiber

The Federal Communications Commission’s decision to allow CenturyLink to buy Level 3 Communications might have broken with merger review practices, but it is solidly in line with its past nonsense regarding wholesale broadband services. Earlier this year, the FCC justified backing away from common carrier regulation of business-to-business service with the circular argument that if ISPs – Comcast and Charter Communications, in particular – don’t follow common carrier rules, then common carrier rules don’t apply.

In its latest departure from logic, the FCC majority claimed that allowing a managed services-centric legacy telco to buy the nation’s largest independent fiber company wouldn’t harm the market for “long-haul transport service” because lit service and dark fiber are the same thing…

In conducting our review, we evaluate the competitive availability of long-haul transport considering both lit transport services and dark fiber, as we recognize dark fiber as a substitute for lit fiber transport services for purposes of our public interest analysis and there is no basis in our record to distinguish between lit and dark fiber transport.

There is, in fact, a huge difference between buying lit (or managed) service, where bandwidth quality, reliability, capacity and routing are determined by the provider, and leasing particular strands of dark fiber between two points and lighting it up with your own equipment.

The latest example of why that’s an important distinction came three weeks ago when the County of Santa Cruz lost internal connectivity and its primary link to the Internet during a major wildfire, due to an otherwise unrelated cut in an AT&T fiber line. County staff didn’t know that the direct connections between major sites they thought they were buying from AT&T were actually being routed through San Jose. A single misplaced chop by a road construction crew was enough to take it all down.

Dark fiber is also an essential building block for competitive service providers. When independent ISPs are forced to buy managed service on terms dictated by the monopolies they’re competing against, anything resembling a free market disappears. By ignoring this distinction and approving the CenturyLink-Level 3 deal with no thought given to the damage it will do, the FCC is whacking market competition, not regulatory weeds.

Sneak peek at FCC’s pending preemption of local wireless reviews?


Some poles are history.

The Federal Communications Commission might have given us a preview of what its intended preemption of state and local discretion over wireless sites will look like. Later this month, commissioners will vote on whether or not to exempt replacement utility poles, that are used to support new wireless facilities, from historical preservation reviews. At the top level, it’s about extending an existing historical review exemption for towers to utility poles that aren’t presently supporting wireless equipment. (As a practical matter, pretty much any pole that’s being used for wireless purposes already qualifies as a tower).

But it isn’t much of a leap to read the narrow language regarding historical reviews, and imagine it being turned into the basis for a general preemption of state and local laws…

Small cell antennas are much smaller and less obtrusive than traditional antennas mounted on macro cell towers, but a far larger number of them will be needed to accomplish the network densification that providers need, both in order to satisfy the exploding consumer demand for wireless data for existing services and in order to implement advanced technologies such as 5G. We find that excluding the pole replacements at issue here from review under [historical preservation regulations] will allow providers to complete these deployments more efficiently. In addition, creating an exclusion for replacement of utility poles will promote consistency between the process that carriers and pole constructors must follow to comply with our historic preservation review requirements and those they must follow when building replacement poles that are subject to the requirements of other agencies applying [rules regarding federal lands].

Under the terms of the draft FCC order, if replacement poles aren’t of historical interest themselves and are “situated in the same hole as the original pole, are no more than 10 percent taller than the original pole, and are consistent with the quality and appearance of the original pole”, they will be exempt from historical preservation requirements. For now, the FCC isn’t extending another exemption criteria – “20 feet plus the height of an antenna array” – to replacement poles, but only because of the potential impact on historical sites.

This effort at the FCC is separate from a push in the U.S. senate to effectively wipe out local government property rights and strictly limit permit authority regarding poles and other vertical assets targeted by wireless companies.

Any bets on how the FCC’s general preemption of wireless site reviews will eventually read?

U.S. senate looks at stomping local wireless property rights and permits

A draft bill bouncing around the U.S senate would preempt state and local ownership of public property when wireless companies want to use it, and would put tight limits on state and local authority to issue permits for wireless facilities on private property. It’s a bipartisan effort, led by senators John Thune (R – South Dakota) and Brian Schatz (D – Hawaii), both of whom are major congressional broadband policy players.

In a lot of ways, it resembles senate bill 649, which was approved by the California legislature this year then vetoed by governor Jerry Brown, who wanted a “more balanced solution”. This bill ain’t it. As drafted, the bill

  • Requires state and local government to make the public right of way, and poles and any “other facility owned by the state or local government” available “to support equipment for use by providers of wireless services”.
  • Says compensation for use of poles, right of way and other property must be “based on actual and direct costs”. Utility poles – as opposed to, say, street light poles – are exempted, in a double-reverse sort of way. Rates for attachments to utility poles are governed by existing state and federal laws, and are similarly restricted to actual costs. The formulas used to determine those rates will be the presumptive method for figuring out the actual and direct cost of attaching wireless transmitters and antennas to street lights and other publicly owned assets. In California, that rate is around $25 per year, give or take a few bucks, per foot of pole used. That’s even less than SB 649, which allowed actual cost plus $250 a year.
  • Creates a shot clock of 60 days to “act on” collocation permit applications and 90 days for any other request to “to place, construct, or modify wireless service facilities”. Current federal shot clock rules are more complicated, and range from 60 days to 150 days.
  • Provides that if the shot clock expires without a decision, the permit application would be automatically “deemed granted”. California already has a similar “deemed approved” law, that’s tied to the various 60 to 150 day shot clocks.
  • Extends all the related courtesies and privileges of telcos to cable companies, without any of the associated regulatory obligations.

So far, the bill hasn’t been formally introduced. That’s not such a big deal in the federal congress, where final bill language regarding any topic can materialise at the last moment and be tacked on to completely unrelated legislation. This draft reads like it was written by wireless and cable lobbyists, who wouldn’t be at all interested in giving it a fair and open hearing. As the year winds down, anything could happen.

Swat away state broadband laws, Verizon tells FCC

Verizon doesn’t like it when states pass laws that affect its business, and now it wants the Federal Communications Commission to simply sweep those annoying rules away with a single, blanket preemption.

In a white paper filed with the FCC, Verizon points to ongoing efforts in California, and several other states, to re-impose Internet privacy rules that were overturned earlier this year by the federal government. It also fears that states will try to reinstate net neutrality requirements, and other common carrier obligations that the FCC is likely to scrap in the coming months.

The white paper offers excruciatingly detailed arguments about why the FCC has the authority to take any and all broadband regulation out of states’ hands, but it boils down to treating it as a purely interstate service…

The Commission can ensure nationwide uniformity for interstate services by preempting state and local laws that interfere with its exclusive jurisdiction over such services and are inconsistent with federal policies for those services, including federal polices providing for less regulation. The Commission has a long history of setting a deregulatory policy for an interstate service and preempting state and local laws that threaten to impede that policy, and courts have consistently upheld these exercises of the Commission’s preemptive power.

This latest move at the FCC is running parallel with an overhaul of wireless permitting rules, that’s also expected to result in less state and local discretion regarding issuing permits for building cell towers or other wireless infrastructure.

Verizon wants the FCC to include this overarching preemption in what is expected to be a reversal of its 2015 order classifying broadband as a common carrier service, which could come as soon as next month. Even if this kind of blanket preemption isn’t rolled into the common carrier decision, though, the concept will find willing ears among commissioners. It’s a good bet that we haven’t seen the last of it.

FCC limits scope of merger reviews as it okays CenturyLink-Level 3 deal

CenturyLink can close its deal to buy Level 3 Communication, and will probably do so tomorrow. The Federal Communications Commission gave the final green light to the deal on Sunday, without imposing any significant conditions. The FCC’s decision amounts to a manifesto that lays out how the republican majority will sharply restrict its review of future mergers and acquisitions.

The previous democratic-majority FCC took a broad look at proposed mergers, sometimes imposing conditions aimed at extracting general public benefits, but not necessarily directly related to problems caused by the transaction itself. One example was the low price Internet package AT&T was required to offer to low income households when it was allowed to buy DirecTv.

In a statement, FCC chair Ajit Pai said such conditions are a thing of the past…

This is in line with past pronouncements by the Commission that we will use conditions “only to remedy harms that arise from the transaction (i.e., transaction-specific harms)” and that are “related to the Commission’s responsibilities under the Communications Act and related statutes,” and we “will not impose conditions to remedy pre-existing harms or harms that are unrelated to the transaction.”

For the CenturyLink-Level 3 deal, the FCC found those transaction-specific harms to be virtually non-existent. The sole condition it attached to its approval was a five year price freeze on business services in 10 buildings scattered across the U.S. (but none in California), where Level 3 and CenturyLink both serve customers. That’s out of 4,600 buildings where the two companies currently compete.

The loss of an independent dark fiber competitor to a legacy telco with a monopoly-centric focus on lit services isn’t a problem, according to the FCC decision, because 1. there’s no meaningful difference between dark fiber and lit service and 2. the federal justice department took care of any imaginable problems by requiring the new company to lease out 24 dark fiber strands on 30 particular intercity routes, including five in California.

Pai and the other two republicans on the commission, Michael O’Rielly and Brendan Carr endorsed the decision; democrats Mignon Clyburn and Jessica Rosenworcel disagreed with it, to one extent or another.

FCC continues push to replace rural copper with wireless service

The Federal Communications Commission won’t preempt state regulations regarding changes in network technologies made by telephone companies – commonly referred to as copper retirement – but it will streamline its own procedures to make those transitions easier. Including replacing rural wireline systems with wireless service that has much lower capacity, reliability and consistency than the fiber networks slated for more affluent communities. That’s the gist of a draft order published by the FCC last week.

Earlier this year, the FCC opened two proceedings, aimed at making it easier to deploy wireline and wireless broadband infrastructure. The draft rules came out of the wireline enquiry.

Copper retirement is an umbrella term that covers three different types of technology changes: old style POTS (plain old telephone service) to Internet protocol (VoIP) technology, copper lines to fiber lines, and copper lines to wireless service. The FCC, like AT&T, focuses its argument on the copper to fiber transition, because it’s relatively uncontroversial. A fiber upgrade is generally considered to be a wonderful thing. The POTS to VoIP transition is a bit more troublesome – back up batteries are needed, there’s continuing concern about interoperability with legacy equipment and there are job implications for telco employees – but those are solvable problems.

Replacing copper networks with wireless service, though, is not benign. AT&T is already pushing to yank out copper in rural California, and Frontier is not far behind. The replacement wireless systems might or might not be able to support even the current low level of service delivered by these decaying systems, and will certainly not be capable of matching the fiber systems that more affluent and densely populated urban and suburban communities will get.

The California Public Utilities Commission warned the FCC not to conflate “fiber facilities with next-generation services”, yet that’s exactly what it’s doing. The FCC’s draft refers to “fiber or other next-generation technology” as acceptable replacements for copper wireline networks. The “next-generation technology” in question is fixed and mobile wireless networks that’ll use the latest equipment, but will be configured and provisioned for a much lower level of service.

The FCC is scheduled to vote on the new rules next month.