The ninth circuit federal appeals court ruled that challenges to last year’s Federal Communications Commission’s wireless and wireline preemption orders will move forward. The FCC will have to deliver its administrative record to the court next month, and the initial exchange of arguments from both sides will begin in June and run through September, according to an earlier ruling that two appellate justices confirmed yesterday.
A federal appeals court commissioner has, for now, set a schedule that sorts out the various challenges to last year’s Federal Communications Commission decisions that preempted local ownership of streetlights and similar infrastructure, and put tight restrictions on how local governments manage public right of ways. Last week Peter Shaw, a commissioner for the ninth circuit federal appeals court in San Francisco, met with attorneys for local agencies and associations that are challenging various aspects of the order, and with lawyers for mobile carriers that are pretending to be upset with the FCC’s decisions, but are actually jumping in on its side.
The result is a schedule that has the final round of written arguments completed in September, which could lead to a decision in 2020.
If the San Francisco appeals court judges allow the cases to move ahead at all. They still have to decide if they’re going to grant the FCC’s request to put everything on hold until the commission gets around to closing out its proceeding.
It’s still a messy set of cases. A consensus statement filed before the case management conference by all the litigants tends to confirm the allegation that the FCC colluded with mobile carriers in a judge shopping play. The “industry petitioners” – AT&T, Verizon, Sprint and Puerto Rico Telephone Company – are lined up on the FCC’s side…
Some of the Small Cell Appeals were filed by local governments and publicly-owned utilities (the public petitioners), and separate appeals were filed by various providers of wireless services (industry petitioners). Their positions are in opposition, and industry petitioners, as well as certain intervenors, will support the FCC in opposing the public petitioners, and vice versa.
However, optimism about the case appears to be dying at the FCC. “It seems increasingly likely that the courts will return some part of our small cell infrastructure decisions back to this agency with a remand”, commissioner Jessica Rosenworcel wrote in a comment endorsing the FCC’s latest preemption attempt. Translation: it’s not looking good for our team.
A schedule that gets the initial legal skirmishing out of the way by September is a positive step. The next question to answer is whether the FCC’s stalling tactics will succeed in derailing it.
It makes for good headlines for a slow Friday at the white house, but so far that’s about all that’s resulted from a $20 billion pledge to support rural broadband development. Federal Communications Commission chair Ajit Pai joined president Donald Trump to hype 5G plans and spectrum auctions, and tossed in a new rural broadband initiative at the end.
Pai’s “Rural Digital Opportunity Fund” is just the next reboot of the long standing Connect America Fund (CAF) subsidy program, that similarly poured billions of dollars into rural broadband projects, according to a story by Jon Brodkin in Ars Technica…
The new program will be part of the Universal Service Fund (USF), and it will be similar to an existing USF program that began during the Obama administration. In 2015, the USF’s Connect America Fund (CAF) awarded $9 billion for rural broadband deployment—$1.5 billion annually for six years—in order to connect 3.6 million homes and businesses…
At $2 billion a year over ten years, the fund will provide more money each year over a longer period of time than the CAF program it would replace…
In an email to reporters, Pai’s office said the Rural Digital Opportunity Fund will “provide up to gigabit-speed broadband in the parts of the country most in need of connectivity.”
Arguably, CAF caused many of the problems that Pai now says he wants to solve. The program was custom designed to funnel taxpayer money to big, incumbent telephone companies, who, in return, promised to deploy slow speed, low capacity service – 10 Mbps download and 1 Mbps upload speeds, often via bandwidth-limited fixed wireless systems – by the end of next year.
There’s no indication that the FCC’s telco-centric approach will change, or that subsidised rural broadband service will be significantly better than what’s been deployed in the past. There are tight restrictions on how USF money can be spent and who can get it. The game was rigged by telecoms companies a long time ago and the problem is only getting worse.
Promising “up to gigabit speed” service doesn’t really promise anything. Last year, Pai embraced the 25 Mbps down/3 Mbps up standard adopted by the federal agriculture department, but even that is mired in the past – homes and businesses need access to speeds of 100 Mbps down/20 Mbps up just to keep up with current demand.
A network neutrality bill cleared the democrat-controlled U.S. house of representatives yesterday and is on its way to the U.S. senate, where republican leader Mitch McConnell has been widely quoted as saying it’s “dead on arrival”. The vote in the house was “mostly along party lines”, with only republican – Bill Posey (R – Florida) – joining democrats, according to The Hill.
The text of the bill hasn’t been posted yet. The first draft simply reinstated the Obama-era net neutrality rules and blocked the Federal Communications Commission from making any changes. A later amendment gave smaller Internet service providers – those with fewer than 100,000 customers – an extra year to comply with some of the terms.
According to the Electronic Frontier Foundation, which tracked the action yesterday, more changes were made on the house floor, which were mostly benign but…
One amendment does give us pause, though. The last amendment to the bill (McAdams), affirms a bit from the old Open Internet Order, saying that the net neutrality prohibition on blocking doesn’t prevent ISPs from blocking “illegal” content, a distinction that includes copyrighted material…A broad reading of this amendment could easily have greenlit Comcast’s throttling of Bit Torrent, which led to a past FCC sanctioning the cable company for violating net neutrality…
As ISPs and media companies become even more intertwined, it’s easy to imagine this loophole being exploited. However, legislative debate..made clear that this amendment did not give an ISP the right to censor content solely because the ISP thought the content was unlawful.
It’ll take more than one renegade republican in the senate to prove McConnell wrong. But it’s happened before. Shorty before the current FCC rules took effect last year, three republican jumped ship and voted for a resolution of disapproval. It could have reversed the FCC’s decision, but didn’t go anywhere in the then-republican majority house.
Colorado is about to have a network neutrality law that has teeth and a chance of surviving federal court challenges. Senate bill 78, which was just passed by the Colorado legislature, says that Internet service providers that don’t abide by net neutrality principles can’t get state broadband deployment subsidies, and might even have to return money previously awarded if they’re caught violating those rules in the future.
It’s a partisan issue. All republicans in both the Colorado house and senate voted against it; all democrats voted for it. The bill is on its way to Colorado governor Jared Polis for his signature. He’s a democrat too, so no points for guessing what he’s probably going to do with it.
Colorado ISPs will have to disclose their network management policies, and can’t block or throttle subscriber’s Internet traffic, or engage in paid prioritisation. Unlike Comcast and some other ISPs that say they’re against paid prioritisation, but spin it so narrowly that their pledges become meaningless, Colorado’s SB 78 has a reasonably robust definition of it…
“Paid prioritization” means the management of an Internet service provider’s network to directly or indirectly favor some traffic over other traffic, including through the use of techniques such as traffic shaping, prioritization, resource reservation, or other forms of preferential traffic management, either: (i) in exchange for consideration, monetary or otherwise, from a third party; (ii) to benefit an affiliated entity; or (iii) to disadvantage a competing entity or its affiliates.
Last year, the Colorado legislature set up a broadband deployment subsidy program that’s heavily biased in favor of incumbents, although it also allows for the possibility of municipal project funding in smaller communities. It tracks with old school universal telephone service programs, so the biggest impact of the bill will be on incumbent telcos. CenturyLink is the big one, and there are some smaller rural telcos too.
So far, California has taken a different path. Although lawmakers passed SB 822, a net neutrality bill last year that more or less reinstated rules scrapped by the current republican majority on the Federal Communications Commission, that law is tied up in federal court and is likely to stay there for years. A companion measure, SB 460 that would have barred state and local agencies from spending taxpayer money on non-net neutral broadband service died at the end of last year’s legislative session.
At the state level, it’s bills like Colorado’s SB 78 and California’s SB 460 that have genuine potential to make a difference. Although SB 822 was well meaning, enforcement requires the cooperation of federal judges and diligent effort by California attorney general Xavier Becerra, neither of which are evident so far. Key California lawmakers get big bundles of cash from big telecoms companies, and have so far not disappointed them in any meaningful way. It seems to be a different game in Colorado.
The privacy practices of four major broadband service providers and one big disruptor are getting a hard look from the Federal Trade Commission. Comcast, AT&T, Verizon, T-Mobile and Google Fiber were given 45 days to produce detailed information about their business practices and subscribers, with particular emphasis on how they collect information about customers, whether it’s done with genuine permission, and what they do with it.
The information demanded by the FTC includes statistics on how many people actually read privacy policies, along with what promises to be a tall stack of those policies – every single one that’s been written by the companies, including copies that might be “different from the original because of notations on the copy”.
One particular concern of the FTC is whether the companies treat customers differently based on the degree of privacy they’re willing to surrender…
Has the Company ever offered different levels of service, quality of service, rates, pricing, rewards, or other incentives for consumers who opt-in to the collection of information about themselves, their Devices, their communications, their viewing history, or their online activities? If so, Describe in Detail such practices and produce Each materially different notice provided to consumers concerning the practice…
Has the Company ever denied service, or otherwise degraded the quality of service, for consumers who fail to opt-in to the collection of information about themselves, their Devices, their communications, their viewing history, or their online activities, beyond information that is necessary for the provision of Internet or cable services? If so, Describe in Detail such practices and produce Each materially different notice provided to consumers concerning the practice.
AT&T and Verizon will have to produce information about both their wireline and mobile subsidiaries. It’s probably a good assumption that Comcast will have to submit data about its wireless business practices too. One company that’s notably absent from the list is Charter Communications, which has nearly as big a market share as Comcast. Sprint is missing too, but it’s the smallest of the major mobile carriers and might not be around much longer anyway.
Intentional or not, the FTC’s fishing – whaling – expedition is a welcome response to a damning assessment by the federal general accounting office assessment that the agency is largely clueless about the online world.
More federal preemptions of property ownership and local oversight of permits for wireless facilities are on the way. The Federal Communications Commission is scheduled to vote later this month on starting the process of rewriting its interpretation of federal law regarding home antennas.
The rule in question is inelegantly known as OTARD – over the air reception devices. The law behind the rules was originally intended to allow homeowners and renters to install small satellite dishes for, say, DirecTv or DISH. Over the years, it expanded to include other consumer gear such as broadcast TV and fixed wireless broadband antennas.
Now the FCC wants to turn the rule inside out, and make it apply to property occupied by mobile carriers and wireless broadband providers, and to equipment that’s not normally reckoned to be consumer devices. In other words, take a law and a rule that was written to allow consumers latitude to install (relatively) small antennas on their homes, and use it to give wireless companies a free pass to install anything they want within the one meter limit, anywhere they want, so long as they’re already own or, more commonly, are leasing the site.
The FCC’s draft notice of proposed rule making falsely spins the changes as correcting an earlier misinterpretation…
Should the Commission clarify that it will interpret “antenna user” to include fixed wireless service providers? For example, if a fixed wireless service provider leases space for a hub antenna on private property, should the Commission clarify that the service provider becomes the “antenna user” with respect to that property? Would doing so be necessary to ensure that fixed wireless providers are able to take advantage of an expanded OTARD rule?…Should the Commission revise this provision to delete the word “customer”? Is doing so necessary to ensure that the rule applies to hub and relay antennas?
The way it works now, if a homeowner wants to install a satellite, broadcast or broadband receiving antenna there’s no need to get a permit or ask permission from a city planning department or a homeowners association, so long as it’s no more than one meter across. Some regulations, such as electrical and safety codes and minimal concealment requirements might still apply, but the right to install a dish or other antenna is sacrosanct. The same privileges apply to a renter: a landlord might be able to dicker about placement, but can’t ban dishes or other types of antennas.
On the other hand, wireless companies generally need permits to install cell sites – small or large – and other network infrastructure on private property. It’s also common for leases to include specifications for what’s to be installed. That’s a particular concern when a wireless company leases space on top of a roof or at a mountaintop site which hosts many providers’ equipment.
Any new rules are still months away. Before anything is finalised, there will be ample opportunity to file comments. But on the evidence of two recent and contentious proceedings – net neutrality and preemption of public agency ownership of poles – the republican majority at the FCC has already made up its mind and is simply giving notice of its intent.
My clients are mostly California cities, as well as some private communities, all of whom are directly affected this case. I’m not a disinterested commentator. Take it for what it’s worth.
A key sub-committee in the U.S. house of representatives today approved a bill that would restore the 2015 network neutrality rules adopted by what was then a democrat-controlled Federal Communications Commission. It was a party line vote – dems yes, republicans no. The approved text hasn’t been posted yet, but there’s no indication of substantive changes from the version that was introduced earlier this month. The next stop is the house’s full energy and commerce committee.
Microsoft is the latest organisation to tell the Federal Communications Commission that its broadband availability data is wrong. Earlier this month, an Internet advocacy group uncovered an egregious outbreak of map spam that skewed the FCC’s broadband analysis in several states, leading to a premature declaration of deployment victory (h/t to Wendy Davis at Digital News Daily for digging out the story). Last week, Microsoft presented its own analysis at the FCC, based on Internet usage data it collected itself, and came to the same conclusion…
The Commission’s broadband availability data, which underpins FCC Form 477 and the Commission’s annual Section 706 report, appears to overstate the extent to which broadband is actually available throughout the nation. For example, in some areas the Commission’s broadband availability data suggests that Internet Service Providers (“ISP”) have reported significant broadband availability (25 Mbps down/3 Mbps up) while Microsoft’s usage data indicates that only a small percentage of consumers actually access the Internet at broadband speeds in those areas.
Microsoft originally provided its data to the FCC in December, but it didn’t seem sink in. For example, the FCC claims that 91% of Oregonians can get broadband service a minimum of 25 Mbps download and 3 Mbps upload speeds. That’s the standard for usable broadband service adopted by both the FCC and the federal agriculture department. But Microsoft, which can see how fast its customers’ connection are, says the real figure is 60%.
Nationally, the discrepancy is even bigger. The FCC did its victory dance based on data that seemed to show that only 25 million people in the U.S. lacked access to that minimum broadband service level. Microsoft’s analysis indicates that 163 million U.S. residents “do not use the Internet at broadband speeds”. Availability and actual usage are two different metrics, but those differences cannot, by themselves, account for the 138 million person gap. Service providers might claim to offer a particular level of service in a given census block, but that doesn’t mean they’re offering it to everyone who lives there or that everyone can afford it.
The federal appellate court review of two Federal Communications Commission rulings that preempt local authority over wireless attachment and wireline excavation permits, and take away local ownership of streetlight poles and similar property will continue, albeit slowly. Yesterday, the ninth circuit court of appeals in San Francisco refused to ice the case completely, as requested by the FCC and as dutifully echoed by wireless carriers.
Instead, the court consolidated the twelve separate appeals of the September wireless attachment order into a single case, and assigned it to the same set of judges who will consider two appeals of the August wireline excavation order. A “special master” was given the job of sorting out the nuts and bolts of consolidating the twelve challenges to the wireless attachment ruling, and combining them with the two wireline excavation appeals.
The special master was directed to…
Conduct a case management conference with the parties. The special master shall consider any issues he deems appropriate to manage the petitions effectively, including but not limited to the development of a briefing plan for the above-listed twelve petitions. The case management conference will be scheduled by separate order of the special master…
Proceedings in these consolidated petitions other than the case management conference are stayed pending the case management conference.
That means that the FCC won’t have to submit the records that its rulings were based on for now, giving it time to go through the motions of reconsidering those decisions. The ninth circuit will decide next steps after the case management conference is held and a plan for moving forward is proposed. The previously set 5 April 2019 date for (written) opening arguments was cancelled.
There are what amount to three interlocking cases in play. The cities, counties and associations challenging the September wireless order say that the FCC overstepped its authority in many regards, especially when it declared that municipal poles and other structures in the public right of way don’t belong to the agencies that installed them. The ones challenging the August wireline order make similar arguments about a blanket preemption of local rules regarding when telecoms companies can dig in the street, including seasonal restrictions – working on ice covered streets during spring freeze/thaw cycles, for example, can turn a nice stretch of asphalt into a dirt road.
The third case is a sham argument made by four wireless carriers – AT&T, Verizon, Sprint and the Puerto Rico Telephone Company – apparently in collusion with the FCC. The four corporate appeals were filed in different and friendlier appellate court districts, and initially succeeded in landing the case with presumably more sympathetic judges in Denver. They were not sympathetic enough though, accepting the argument made by the City of San Jose that eventually landed everything in San Francisco.
My clients are mostly California cities, including some that are directly involved in this case. I’m not a disinterested commentator. Take it for what it’s worth.