Tag Archives: fcc

California net neutrality law can survive federal challenge, lawmakers told

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The California senate’s judiciary committee approved, on a party line vote, a proposed net neutrality law, after hearing that it was at least defendable against the inevitable court challenges that cable and telephone companies would file. Senate bill 822 would define blocking, throttling, paid prioritisation and paid or provider-specific zero rating as unfair competition, and enforce those rules via civil lawsuits.

The big question was whether a Californian net neutrality law would withstand the Federal Communications Commission’s declaration that it was preempting state level broadband regulations. Barbara van Schewick, a law and computer science expert at Stanford University who helped draft the bill, explained to the committee why she thinks it will…

I believe this bill is on firm legal ground with respect to the preemption. The case law shows very clearly that an agency only has authority to preempt if it does have authority to regulate…In 2017 the FCC systematically dismantled all of its sources of authority that would allow it to adopt net neutrality rules. They got rid of Title II, that was a firm source of authority. They got rid of section 706, which in 2014 the Verizon court had said that’s a source of regulatory power over the ISPs. And the only thing that’s left is Title I. Unfortunately, that does not give the FCC authority to adopt net neutrality rules, as we’ve known since 2010 when the D.C. circuit struck down the FCC’s order against Comcast for interfering with applications…saying very clearly, you, FCC don’t have ancillary authority to adopt net neutrality regulations under Title I. And that’s why the FCC in its own order in 2017 concludes and says, you know, we’re not just determining that adopting net neutrality is bad policy. Even if we wanted to we now have no authority left to do this.

The only disclosed change was a clarification regarding who could sue ISPs that break the rules – it’s not just the California attorney general. Attorneys for local agencies could go to court. So could “a person who has suffered injury in fact and has lost money or property as a result of the unfair competition”. Or, in practice, a contingency fee lawyer representing such a person.

The usual lobbyists showed up to oppose the bill, including those representing AT&T, Frontier Communications, and the front organisation for Charter Communications, Comcast, Cox Communications and other cable companies, the California Cable and Telecommunications Association.

The next stop for SB 822 is the senate appropriations committee.

California net neutrality bill bends to telco, cable wishes

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It would still ban blocking, throttling, paid prioritisation and some kinds of zero rating, but a California senate committee has pulled some of the sharper enforcement teeth out of a bill to reinstate network neutrality rules. With one exception, though, definitions of banned and permitted practices remain the same.

Senate bill 822 was approved by the senate energy, utilities and communications committee last week on a party line vote, with the condition that undisclosed changes, negotiated behind closed doors, would be made. Those amendments were finally released, and the result is fewer net neutrality enforcement options.

The changes are significant because the headline enforcement mechanism – consumer protection lawsuits by the California attorney general – stands a good chance of being overturned by federal courts. It’s the geekier enforcement methods, with a firmer grounding in state authority, which have better odds of survival. So the fewer of those that in the bill, the likelier the end result will be empty words that have little or no effect on the big Internet service providers, such as AT&T, and Comcast and Charter Communications. Which is why they crowded into the back rooms where their California senate friends watered down the bill.

The chopped sections include…

  • Requiring projects built with Californian broadband and telephone subsidies to abide by net neutrality principles.
  • Putting net neutrality obligations into statewide video franchise awards or renewals for both cable and telephone companies.
  • Bringing energy regulators into the net neutrality loop, as part of California’s smart grid initiatives, with particular direction to assess the impact of net neutrality practices, or the lack thereof, on “resource management and grid reliability”.
  • Designating the California Public Utilities Commission as a net neutrality watch dog.
  • Requiring ISPs to notify the CPUC if they try to take advantage of exceptions written into the bill.

One other enforcement tool is still in SB 822. State agencies and local governments would only be able to purchase broadband service from ISPs that follow net neutrality rules, except in areas where there’s only a single provider. It parallels net neutrality language approved in other states, and is reckoned to have the best chance of surviving court challenges.

The changes also redefine a net neutrality safe harbor. Previously, SB 822 allowed Californian ISPs to offer “different types of technical treatment” as a service to end users, who could freely apply it to content or applications of their choice (and they, and not third parties, would pay for it). That’s been changed to “different levels of quality of service”, with the caveat that a basic service level must be offered to all and optional service levels cannot degrade it. That’s a more subjective definition, arguably one that’s more understandable to consumers, but it could also give ISPs more wiggle room.

SB 822 is up for another hearing in the senate judiciary committee tomorrow.

FCC pits one local technical expert against big telecom’s lobbyist horde

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Ajit Pai is trying to stop the bleeding on his Broadband Deployment Advisory Committee (BDAC). The Federal Communications Commission chairman appointed David Young to the committee, as a representative of the National League of Cities. Young is the fiber infrastructure and right of way manager for Lincoln, Nebraska’s public works department. It’s not explicitly stated, but the intent seems to be to fill at least one of the chairs left vacant by recent resignations by high profile municipal representatives. Pai is now dealing with accusations that the committee’s broadband policy work was hijacked by telephone and cable company lobbyists, as well as the recent arrest of a former BDAC chair on fraud charges.

It’s completely appropriate for the League of Cities to take a place on the committee. It’s a national lobbying front for municipalities, allowing cities to push their common interests in Washington, D.C. Since BDAC’s membership – official and unofficial – largely comprises lobbyists representing telecoms companies, it’s course-of-business for the League to take a set at the table, too.

I don’t know Young, but after taking a look at how Lincoln supports fiber build outs in the community, it seems apparent that he knows his stuff. And his stuff is boots on the ground management of city permit processes and utility easement issues. That’s important experience, and the FCC should listen to his advice.

But the resignations of San Jose mayor Sam Licardo and New York City chief technical officer Miguel Gamino – both because of the way the FCC is kowtowing to cable and telco lobbyists – left a bigger hole than Young can fill. He should have been on the committee with Licardo and Gamino from the beginning. The FCC should have given equal weight to the technical and policy expertise offered by municipal representatives, particularly when crafting model policies that state and local governments will be urged – or perhaps required – to follow.

That didn’t happen. So when BDAC meets later this month, it’ll be one new, fresh local face versus a platoon of entrenched beltway bandits working for big cable and telephone companies. That’s something to keep in mind when evaluating whatever comes out of it.

AT&T, Comcast, Charter get net neutrality help from California senate friends

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Network neutrality legislation moved ahead in the California senate yesterday, but it’s not clear what exactly it says. The senate’s energy, utilities and communications committee worked over senate bill 822, before endorsing it on a party line vote and sending it on to the judiciary committee. As is common practice in Sacramento, the committee didn’t vote on the published text of the bill, carried by senator Scott Weiner (D – San Francisco), but conceptually approved it, based on unpublished amendments negotiated secretly on Monday, which will be further modified by changes yet to be dictated by committee chair Ben Hueso (D – San Diego).

At the end of a lengthy hearing, Hueso, a reliable friend of cable and telephone company lobbyists, looked at Weiner and said “there are some little things we have to fix with them and we’ll work with your office on clarifying what that is”.

“What little things?” Weiner asked.

“The mock up”, Hueso said, referring to the draft that Weiner thought the committee had agreed to support.

“You mean like typos or…”, Weiner replied.

“Potentially”, Hueso said with a low chuckle – the sort of nervous laugh you might make when a cop pulls you over and asks if you’ve been drinking. “Nothing major”.

A story by Jon Brodkin in Ars Technica offers some insight into what those little things might be. He obtained copies of unsigned “bill analyses” given to lawmakers by AT&T and the lobbying front used by Comcast and Charter Communications, the California Cable and Telecommunications Association.

That’s another common practice in Sacramento – industry lobbyists will submit anodyne comments for public consumption, and then fire broadsides at legislators behind closed doors, who are very mindful of the millions of dollars they collectively receive from those companies. Also behind closed doors.

However it turns out, it’s clear that the language in SB 822 is moving in the direction urged by telephone and cable company lobbyists. A committee analysis was published over the weekend – something Hueso is in a position to control – and it urged changes friendly to those industry interests. Based on the back and forth at yesterday’s hearing, it seems that the final product will be even friendlier.

Mobilitie, Sprint whacked with fines for ignoring environmental, historic rules

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Mobilitie’s fast and loose way of building out cellular networks has earned it and its major customer, Sprint, fines and a reprimand from the Federal Communications Commission. In a consent decree – a negotiated settlement – Mobilitie agreed to pay a $1.6 million fine and Sprint agreed to a $10 million fine for ignoring federal environmental and historic review regulations when building new towers.

The FCC’s documents don’t detail where and when the two companies sinned, but the violations were deliberate, as Mobilitie’s consent decree makes clear

In an effort to meet certain deadlines, Mobilitie had commenced construction of certain wireless facilities without securing all necessary regulatory and environmental approvals required under the Commission’s Wireless Infrastructure Rules. Specifically, prior to construction, Mobilitie did not timely complete registration of certain antenna structures with the Commission as required under Section 17.4 of the Rules and did not complete the environmental and/or historic preservation review process set forth in Section 1.1307(a) of the Rules.

Mobilitie and Sprint have to put stricter compliance processes into place so they don’t offend again. The practical effect will be less than you might think, though, because the FCC changed the environmental and historic review rules for some kinds of wireless facilities last month. So it’s possible that the at least some of the activities that got Sprint and Mobilitie into trouble in the past are now legal.

In its push to upgrade Sprint’s mobile network, Mobilitie has also alienated local governments by disingenuously claiming that 120-foot steel poles are “utility poles” rather than the cell towers they actually are, and by operating under a confusing array of corporate aliases. Companies, such as Mobilitie, that are certified as “telephone corporations” by the California Public Utilities Commission are allowed to install utility poles in the public right of way at no cost and with minimal local oversight. On the other hand, cell towers can be, and usually are, more tightly regulated by cities and counties. At least until the FCC decides to rewrite those rules, too.

Another muni broadband expert says no to being a stage prop for industry lobbyists

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Citing similar worries as San Jose mayor Sam Licardo over the FCC’s apparent determination to let industry lobbyists write the Federal Communication Commission’s broadband deployment advisory committee (BDAC) manifesto, Miguel Gamino, New York City’s chief technology officer, turned in his letter of resignation last week

I have expressed concerns with other municipal colleagues in multiple meetings and documents that the makeup of the BDAC, with roughly 75 percent of members representing large telecommunications and cable companies or interests aligned with those companies, would result in recommendations unfavorable to localities looking to responsibly manage public rights-of-way to promote public safety, quality of life, and other priorities. This has resulted in the BDAC producing pre-packaged one-size-fits all proposals that industry lobbyists have pushed nationwide rather than working in a cooperative fashion to find creative solutions to dynamic local issues. In our own working group, there have been no efforts to add more voices familiar with city operations or to replace the former working group Vice Chair San Jose Mayor Sam Liccardo. This has prevented us from addressing the diversity of concerns and solutions that would be offered by a better representation of the nearly 40,000 local governments nationwide.

The committee is scheduled to meet at the end of the month, in what could be its final session. Drafts prepared by the various working groups – which did, at first, allow for some diversity of opinion – are being combined into a single set of recommended broadband development policies for the FCC, and other public agencies, at all levels, to follow. That draft has not been released publicly, but presumably Gamino has some inkling of what it contains. The clear indication is that it will simply add weight to the sledgehammer that republican commissioners are eagerly anticipating slamming down on state and local governments.

Federal broadband subsidy auction doesn’t favor California

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California could, in theory, get as much as $476 million in broadband upgrade subsidies from the Federal Communications Commission’s upcoming Connect America Fund (CAF) auction, but the actual total is likely to be a lot less.

Eligible broadband service providers will bid against a “reserve price” that the FCC sets as the maximum it will pay to fund broadband service at a minimum of 10 Mbps download and 1 Mbps upload speeds in (mostly) rural areas that lack it. It’s a reverse auction – providers will start with the reserve price and bid down from there.

Kern County is in line for the most money – $37 million – and Sutter County is up for the least – less than $10,000. But there’s no guarantee that either will get anything. The FCC has a total of $2 billion to hand out, against a nationwide reserve price total of $6 billion. Presumably, the reverse auction will bring that $6 billion total down, but it’s unlikely, to say the least, to go as low as $2 billion. So some, maybe most, eligible communities will be out of luck.

The eligible areas are a mixed bag. Some are classified extremely high cost places to serve, while others are part of statewide sets that incumbent telcos turned down in the last CAF round. For example, AT&T accepted $360 million in its Californian territory, but took a pass on Nevada. The FCC’s computerised process for determining eligibility produces a checkerboard effect regardless, but even so statewide batches will be more attractive to bidders than the extremely scattered extremely high cost census blocks.

Aside from 45 homes and businesses on the Oregon border in Modoc County, all of California’s eligible areas are either in the extremely high cost category, or in the equally random miscellaneous bucket. Which means we start at a disadvantage.

The auction is scheduled to begin in late July.

San Francisco court punts net neutrality decision back to D.C.

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It was nice while it lasted, but Washington, D.C.’s inexorable gravity has pulled the court fight over network neutrality – or lack thereof – away from San Francisco and back inside the Beltway.

Originally, a judicial lottery determined that the fifteen challenges to the Federal Communications Commission’s decision to roll back network neutrality and broadband status as a common carrier service would be heard by the federal ninth circuit appeals court in San Francisco, where Santa Clara County and the California Public Utilities Commission filed their cases. The prospect of the future of net neutrality being decided in the shadow of Silicon Valley was delicious, but not for the D.C.-based groups that made up the bulk of the challengers. So they asked for the consolidated cases to be moved back to D.C…

Transfer is warranted by all of the factors considered by this Court, including the convenience of the parties, the choice of forum made by the majority of the petitioners, and the fact that this Court’s sister Court for the D.C. Circuit has considered virtually identical issues in inter-related proceedings. Specifically, this case is the fourth, “follow-on” phase in the review of the Federal Communications Commission’s “network neutrality” actions; all prior phases have been adjudicated by the D.C. Circuit. That Court has issued four decisions in these prior three proceedings, variously affirming, or disagreeing with, the FCC’s actions. Transfer is warranted in the interest of continuity.

Santa Clara County and the CPUC didn’t support the request, but they didn’t oppose it either and the ninth circuit approved the transfer.

One of the first issues that the D.C. appeals court will likely decide is whether or not to put the FCC’s net neutrality repeal on hold while the cases are being heard. In past net neutrality cases, the D.C. court declined to do so.

Telco lobbyists eager to sue states over net neutrality laws

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AT&T, Frontier Communications and other telcos will meet state and local level network neutrality initiatives head on. Using their Washington, D.C. lobbying front, USTelecom, they intend to “aggressively challenge state or municipal attempts to fracture the federal regulatory structure”. Or lack thereof.

In a rambling blog post that oddly invokes the original U.S. Articles of Confederation – it hasn’t had any legal effect for more than 200 years but even so, it explicitly gave states the power to make such decisions – USTelecom CEO Jonathan Spalter pledges to say “hell no” to any attempt by states or municipalities to revive network neutrality obligations.

Two net neutrality revival bills are pending in Sacramento, and the Oregon and Washington legislatures have already approved their own versions. There’s no question that these bills will be challenged in court. Conventional wisdom is that state (and local) purchasing requirements – where agencies can only buy broadband service from providers that adhere to particular net neutrality principles – have a good chance of surviving, but explicit state-level regulations don’t.

Not necessarily. There’s a makable case that states do have the authority to impose net neutrality rules, at least for intrastate services, as telecoms law expert Harold Feld explains

We have well over 80 years of history of states regulating how local telephone companies and local cable companies do business within their state. So this isn’t a case where Congress has “preempted the field” as against any state regulation. To the contrary, states traditionally have lots of authority over how they regulate any offering of local service, including an ability to impose non-discrimination requirements.

Feld argues that since the Federal Communications Commission declared that it doesn’t have the authority to regulate Internet service providers, it doesn’t have the authority to preempt state laws in that regard either.

So far no one, including USTelecom, has taken any state net neutrality laws or executive orders to court. Technically, the FCC’s decision rolling back its own rules hasn’t taken effect yet. If it does – it’s also facing legal challenges – expect to see a rush to the courthouse door.

FCC prepares to auction off $2 billion in broadband subsidies

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There’s $2 billion worth of broadband subsidies on the table at the Federal Communications Commission, and providers that are interested in competing for it have until Friday to register.

The FCC published a list of areas, primarily rural, that were left out of previous rounds of federal Connect America Fund (CAF) subsidies, mostly because it cost too much to build infrastructure there or because incumbent telephone companies didn’t accept the FCC’s offer in the last round. What those communities all have in common is that there’s no broadband service that meets its “minimum” standard of 10 Mbps download and 1 Mbps upload speeds.

What’s different this time is that the FCC is setting up a competition between companies and communities. The subsidies will be awarded via a reverse auction. There are complicated rules, but it boils down to a list of census blocks that are eligible, and a “reserve price” – effectively the maximum subsidy amount the FCC will consider spending in each area. Bidding will start at the reserve price and go down from there.

At the end of the process, some communities will eventually get broadband service upgrades and some won’t. If you add up all the reserve prices nationwide, it totals out to $6 billion, three times the available amount. Presumably, bids will come in under the cap, and something more than one-third of the eligible areas will be funded. Presumably.

Broadband speed also counts in the bidding. The FCC has a weighted bidding system that gives preference to projects that exceed the minimum. It set 25 Mbps/3 Mbps upload as the “baseline” level, with two additional tiers above it – “above baseline” at 100 Mbps down/20 Mbps up and “gigabit” at 1 Gbps down/500 Mbps up.

There are financial and technical requirements providers need to meet, in addition to the reams of bureaucratic paperwork that must be completed. Once prospective bidders have been vetted, the FCC moves ahead with the auction, which is scheduled to begin the end of July.