Tag Archives: mte

FCC’s San Francisco broadband preemption appealed

by Steve Blum • , , , ,

San Francisco is taking the Federal Communications Commission to court. Again. On Monday, the City and County of San Francisco filed a challenge to the FCC’s preemption of its broadband access ordinance with the ninth circuit federal appeals court, also based in San Francisco.

The ordinance requires building owners to allow tenants to buy broadband service from the provider of their choice. Providers are able, under the ordinance, to use any available wiring inside the building that’s owned by the landlord to deliver such service. The FCC ruled earlier this month that San Francisco can’t tell an ISP that’s already using a given wire to deliver service that it has to share it with another ISP. San Francisco’s initial response amounted to duh.

But the ordinance is still under threat, because the FCC continues it’s look into the matter, and could preempt the whole thing. So filing a federal court challenge could be one way for San Francisco to head off any further FCC action.

At this point, San Francisco isn’t saying why it thinks the FCC is out of bounds, except to say it’s aggrieved and to make the ritual claim that the ruling is “arbitrary and capricious”…

San Francisco was party to and actively participated in the underlying proceeding before the FCC that led to the Order, and is aggrieved by the Declaratory Ruling part of Order within the meaning of [federal law].

San Francisco seeks review of the Declaratory Ruling part of the Order because it: (i) was issued in excess of the FCC’s statutory authority; (ii) is arbitrary and capricious and an abuse of discretion; and (iii) is otherwise contrary to law, including the United States Constitution.

San Francisco respectfully requests that this Court hold unlawful, vacate, enjoin and set aside the Declaratory Ruling part of the Order, and grant such other relief as this Court may deem just and proper.

Another ninth circuit case that San Francisco and a long list of other cities and counties are pursuing is the challenge to last year’s preemption of local pole ownership and public right of way control by the FCC. Yesterday, the FCC ask for month’s delay in the case, which was summarily rejected by the ninth circuit. It’ll have to submit it’s reply to the case against it next month.

FCC republicans chase San Francisco “bogeyman”

by Steve Blum • , , , ,

Bay to breakers

San Francisco’s open access law that allows any Internet service provider to use landlord-owned wiring inside a building to reach tenants might not be so preempted by Wednesday’s Federal Communications Commission decision. And the FCC’s republican majority is acting more like hired gun lawyers advocating for monopoly-model incumbents than the disinterested expert regulators they’re supposed to be.

Jon Brodkin breaks down the back and forth in a good article in Ars Technica. The ruling formally adopted by republican commissions says that San Francisco can’t require one ISP to share wires it’s already using with another ISP. San Francisco’s response amounted to we don’t require that, so what are you all worked up about? FCC commissioner Jessica Rosenworcel, a democrat, voted against the ruling and blasted her colleagues for running scaredf making up rules on the fly…

Our preemption of this municipal ordinance is stunningly weak. We somehow claim we have unfettered authority when it comes to broadband in buildings but disown our general authority over the same in our net neutrality proceeding, where we pronounced broadband beyond the reach of this agency. So this ruling borrows from old cable signal leakage policies to suggest some new theory of preemption is appropriate. This doesn’t add up…

It is not clear this agency even understands the San Francisco law it seeks to preempt. The law prohibits building owners from interfering with the right of tenants to exercise choice when it comes to communications…the FCC contorts this into a non-existent bogeyman, suggesting that the ordinance compels sharing of wiring that is already in use. This is simply not true…Why are we preempting an imaginary possibility in a city ordinance in San Francisco?

The Trump administration’s FCC bases its rollbacks and preemptions on tortured, case by case reasoning that starts with the result desired by the likes of AT&T and Comcast – repealing net neutrality, preempting local ownership of streetlight poles – and proceeds to justify it on the basis of nonsensical, one-off legal theories – Internet address lookup as an information service, use of the public right of way as a quitclaim deed – that a corporate lawyer would only use as a last resort.

Both FCC chair Ajit Pai and commissioner Brendan Carr represented big telecoms companies in their past legal careers, and they act like they still do. Federal appeals courts are reviewing claims that their net neutrality and pole preemption decisions are “arbitrary and capricious”. Their San Francisco ruling belongs on that list.

FCC’s preemption of San Francisco broadband ordinance gets slapped by U.S. house of representatives

by Steve Blum • , , , ,

John wayne slap

Democrats in the U.S. house of representatives want to block plans to preempt San Francisco’s broadband access ordinance. Last week, the house voted more or less on party lines to prevent the Federal Communications Commission from implementing new rules that would overturn any local regulations that require landlords to give competitive Internet service providers access to wiring inside their buildings.

The language was inserted by California house member Katie Porter (D – Orange) into an appropriations bill. It says…

None of the funds appropriated or otherwise made available by this Act may be used by the Federal Communications Commission to finalize, implement, administer, or enforce the draft Declaratory Ruling in Federal Communications Commission [draft ruling regarding multiple tenant environments], released June 19, 2019, or ruling in [the proceeding challenging San Francisco’s ordinance].

According to an article by Jon Brodkin in Ars Technica, Porter’s concern is competition…

Porter defended the San Francisco ordinance, telling Ars, “The communications industry is in dire need of more competition. San Francisco’s Article 52 has been incredibly effective in promoting broadband competition—giving residents the benefit of competition and choice in the market, increasing their service quality while decreasing their monthly bills.”

Broadband competition is also an issue in Orange County, where “multiple tenant environments” (MTEs) – apartments, condos and office buildings – are thick on the ground. That’s a market that Google Fiber is pursuing in Porter’s district, and competitive broadband, in the form of what appears to be a quasi-municipal project, is also on the table in Fullerton.

Porter’s amendment will likely have only symbolic value. The appropriations bill now goes to the U.S. senate, where republicans will almost certainly cut it out, along with all the other policy pronouncements tacked on to the house-approved version. The FCC is scheduled to vote on the specific San Francisco preemption and on beginning the process of writing its own general regulations for MTE broadband next week.

FCC will preempt San Francisco apartment broadband access ordinance, and that’s just for starters

by Steve Blum • , , , ,

The Federal Communications Commission is preparing to preempt part of a San Francisco ordinance that requires landlords to open up access to existing wiring within a building, and allows any Internet service provider to use it to deliver service to tenants. In a draft ruling released yesterday, the FCC proposes to block any requirement that forces a landlord to share wiring it owns that’s already in use. It would apply to both residential buildings, such as apartments or condos, and office buildings – “multiple tenant environments” (MTEs), as the FCC puts it.

Just in case you were worried that the FCC will stomp all over any local effort to improve access to broadband service, the draft also declares that it does not “preempt state and local efforts to promote facilities-based broadband deployment and competition”.

Well, not really.

In language that would do George Orwell proud, the FCC’s draft says it’ll only preempt local initiatives that “contravene federal law and policy”. Since the FCC reckons that it’s in charge of making federal telecoms policy, it’s actually saying if we don’t like it, we’ll preempt it.

The draft is clear that the FCC doesn’t think the City and County of San Francisco should have any say about who can use whom’s facilities, but for now the preemption would be limited to rules about wires are in use. If a customer in San Francisco, say, cancels broadband service from Comcast but keeps video service, then a competitive ISP wouldn’t also be able to use the wiring that serves the apartment. On the other hand, if the customer cancels all services and there’s unused coax between the apartment and a telecoms closet, then the landlord is still obligated to lease it to a competitive ISP of the tenant’s choice. For now.

San Francisco’s ordinance requires landlords to allow tenants to buy broadband service from any ISP, via existing wiring if that’s the most desirable way. ISPs have to pay “just and reasonable compensation” for the use of those facilities, and follow particular procedures for giving notice to landlords, but at the end of the day they can come in.

A challenge to that ordinance was filed, but initially rejected by the FCC because the legal basis was weird. Or rather, not weird enough for the FCC’s republican majority, which now plans to stretch the regulation cited in that case – the over the air reception device (OTARD) rule – way past the breaking point in regards to another case involving cell sites.

The San Francisco preemption and the pledge to only preempt things it doesn’t like are just a couple of items in a long to do list in yesterday’s draft. The FCC also plans to take a broad look at the relationship between telcos, cable companies and independent ISPs, landlords and tenants. Assuming commissioners vote to approve it at their meeting next month – which is a pretty safe bet – they’ll ask for public comments what else they might do to “accelerate the deployment of next-generation networks and services within MTEs” and on “the impact that revenue sharing agreements between building owners and broadband providers, exclusivity agreements regarding rooftop facilities, and exclusive wiring arrangements have on broadband competition and deployment”.