Tag Archives: netneutrality

Net neutrality ruling sinks FCC local pole ownership preemption theory

by Steve Blum • , , , ,

Although a federal appeals court in Washington, D.C. blessed the Federal Communication Commission’s “2018 Order” repealing network neutrality rules, the judges hearing the case overturned one section that tried to preempt any effort by state or local governments to step into the gap. If the plain language of Tuesday’s opinion is also applied to the FCC’s attempt to preempt local ownership and control of street light poles and other publicly owned assets located in the public right of way, then it’s a slam dunk bet that it’ll be overturned too.

Last year, the FCC issued two far reaching decisions preempting nearly all state and local authority over construction of broadband infrastructure, one dealing with small cell sites and the other dealing primarily with wireline projects. It claimed the authority to do so based on an expansive interpretation of federal communications law that boiled down to we’re in charge of national broadband policy, so what we say goes for everyone.

“No dice”, said the D.C. appeals court. Its opinion made two particular points: 1. congress never gave the FCC the necessary authority to occupy policy territory that legally belongs to states, and 2. if the FCC wants to exercise the authority it does have, it has to do so case by case, by the evidence…

Not only is the Commission lacking in its own statutory authority to preempt, but its effort to kick the States out of intrastate broadband regulation also overlooks the Communications Act’s vision of dual federal-state authority and cooperation in this area specifically. Even the 2018 Order itself acknowledges the States’ central role in “policing such matters as fraud, taxation, and general commercial dealings…remedying violations of a wide variety of general state laws,” and “enforcing fair business practices” — categories to which broadband regulation is inextricably connected…

We have long recognized that “whether a state regulation unavoidably conflicts with national interests is an issue incapable of resolution in the abstract,” let alone in gross…

Because a conflict-preemption analysis “involves fact-intensive inquiries,” it “mandates deferral of review until an actual preemption of a specific state regulation occurs.” Without the facts of any alleged conflict before us, we cannot begin to make a conflict-preemption assessment in this case, let alone a categorical determination that any and all forms of state regulation of intrastate broadband would inevitably conflict with the 2018 Order.

The ninth circuit federal appellate court in San Francisco is hearing the challenges to the FCC’s blanket preemption of local and state authority over right of ways and public property. It’s not obligated to follow the D.C. circuit’s opinion, but given that it has a history of being even more skeptical of federal agency supremacy than its Washington colleagues, it’s heavy odds that it will.

Hope for California’s net neutrality law, as court upholds repeal of federal rules

by Steve Blum • , , , ,

Open internet dont tread on me 2

The Federal Communications Commission’s republican majority acted properly and within the limits of its authority in 2018 when it cancelled network neutrality rules approved in 2015 by the then-democratic controlled FCC. Mostly. A three judge panel on the federal appellate court based in Washington, D.C. – aka the DC circuit – issued its opinion yesterday, providing support for California’s enactment of its own net neutrality rules, but otherwise rejecting most of the arguments made by net neutrality advocates.

But not all. The judges overturned “the portion of the 2018 [FCC] order that expressly preempts ‘any state or local requirements that are inconsistent with its deregulatory approach’”. That action could open the door to state-level net neutrality regulations, similar to what the California legislature enacted last year when it approved Senate Bill 822.

The ink on governor Jerry Brown’s signature was barely dry, when a plague of lobbyists and lawyers descended on Sacramento and challenged the new law in federal court. Yesterday’s ruling removes a major pillar of their case – the FCC’s attempt to specifically preempt state-level action – but they still have a general argument to make, based on federal authority over interstate commerce. Winning that argument will be harder though, because the D.C. circuit opinion resolves a regulatory paradox in California’s favor.

Following the decision, the bill’s author, state senator Scott Wiener, tweeted “SB 822 remains intact & isn’t preempted”.

Even so, SB 822 is in limbo. California attorney general Xavier Becerra agreed not to enforce it while the case against the FCC’s net neutrality repeal was underway. Yesterday’s decision is a major milestone, but not necessarily the last word. Becerra issued a press release claiming victory, but it didn’t mention what he plans to do about reviving and defending SB 822.

The appeals court judges also said the FCC has to flesh out some aspects of its net neutrality decision in light of public safety, pole attachment and lifeline program considerations, ruling in some specific respects the agency’s actions were “arbitrary and capricious”. That’ll be a paper-pushing exercise; any changes that result will almost certainly be minor.

But other than that, the D.C. circuit panel said that the FCC’s rollback of net neutrality rules will stand.

The judges cited more than 20 years of precedent – and back-and-forth FCC decisions – regarding how broadband service is or isn’t regulated. The central question was whether congress gave the FCC the authority to make such decisions, and the judges’ answer is yes. They pointed out that they “do not inquire as to whether the agency’s decision is wise as a policy matter; indeed, we are forbidden from substituting our judgment for that of the agency”. The FCC’s decision has to be “reasonable”, though, and the judges determined that it was. Much of the nearly 200 pages of the opinion was devoted to explaining why. One recurring theme was that, in many respects, the republican-majority FCC simply restored previous, widely accepted rules overturned by the democratic-majority in 2015. The judges also rejected arguments that, as a whole, the FCC’s decision was arbitrary and capricious, although they said in some respects the commission’s work “is no model of agency decision making”.

Yesterday’s decision can be appealed, either directly to the federal supreme court, or by asking all the judges assigned to the D.C. circuit to review en banc the ruling made the opinion of the three judge panel. It could yet be a long time before we get a final answer.

FCC’s weed whacker work fails another court test

by Steve Blum • , , , ,

The Federal Communications Commission’s republican majority is now 0 for 2 in federal appeals court challenges to its weed whacker campaign to prune back telecommunications and media regulations. In an opinion released yesterday, the third circuit federal appeals court, based in Philadelphia, voted 2 to 1 to overturn an FCC ruling that loosened restrictions on media ownership, because republican commissioners blew off concerns about the effect it would have on women and minorities. In August, Washington, D.C.-based federal appellate judges overturned an FCC decision that scrapped environmental reviews for small cell site, saying it was “not logical and rational”.

The Philadelphia judges were likewise scathing in their criticism of the process, or lack thereof, that the FCC used in reaching its decision. It’s the second time in two months that federal appellate judges have rejected a controversial, party line FCC ruling because the republican majority did not do its homework…

Problems abound with the FCC’s analysis. Most glaring is that, although we instructed it to consider the effect of any rule changes on female as well as minority ownership, the Commission cited no evidence whatsoever regarding gender diversity…

Even just focusing on the evidence with regard to ownership by racial minorities, however, the FCC’s analysis is so insubstantial that it would receive a failing grade in any introductory statistics class.

The case has to do with how many TV stations a single company can own, and whether a company can own a TV station and a newspaper in the same media market. It’s not an issue I follow closely, so if you want more background on it, take a look at this story on CNET by Marguerite Reardon.

The court’s opinion has broader significance, because it shows an increasing lack of deference to the FCC’s supposed policy expertise and decreasing tolerance for sloppy decision making that begins with an idealogical conclusion and then supports it with sophomoric legal arguments rather than basing it on the evidence in the record. Appellate court challenges to two more FCC rulings – one rolling back Obama-era network neutrality rules and the other preempting local ownership of street light poles and similar infrastructure in the public right of way – are based on similar grounds. A ruling on the net neutrality case could come at any time. The appeals of the right of way decisions still have several months, at least, to run.

Five years and two FCCs later, FTC settles data throttling case against AT&T

by Steve Blum • , , , ,

The slow motion network neutrality enforcement ping pong match between the Federal Communications Commission and the Federal Trade Commission resulted in a data throttling settlement with AT&T, according to a story by Bevin Fletcher in FierceWireless. The details haven’t been released yet, but if approved by FTC commissioners it would end a dispute over how AT&T manages – throttles – the bandwidth consumed by millions of customers with grandfathered unlimited data plans.

AT&T’s mobile data throttling isn’t limited to legacy all-you-can-eat customers, at least according to research published last year, but the FTC’s enforcement action is limited to legacy data plans that are no longer offered.

The dispute tracks with the history of net neutrality regulation. It began in 2014 with a consumer rights lawsuit filed by the FTC against AT&T, when there were no federal rules in effect regarding net neutrality. When the Obama-era FCC declared broadband to be a common carrier service, AT&T’s response was to claim the FTC no longer had jurisdiction…

The agency said AT&T had been throttling speeds since 2011, and in some cases customers’ data speeds were reduced by nearly 90%. AT&T previously said it has been “completely transparent" with customers since starting its unlimited data throttling practices in 2011.

AT&T’s website currently discloses that for unlimited plans “AT&T may temporarily slow data speeds when the network is busy.”

AT&T had also argued the FTC lacked authority under the then-imposed net neutrality regulations enforced by the FCC, which in 2015 reclassified internet service providers as common carrier telecommunications service providers under Title II of the Telecommunications Act.

Then the Trump administration’s FCC reversed that ruling, saying that broadband isn’t a common carrier service, but instead it’s an information service that’s overseen by the FTC. That reversal led to the pending settlement.

AT&T’s executive shuffle puts WarnerMedia chief in charge of broadband service

by Steve Blum • , , , ,

AT&T made two key executive promotions yesterday, naming erstwhile technology chief Jeff McElfresh to head up its broadband and telephone (landline and mobile) businesses, as well as DirecTv, and promoting WarnerMedia head John Stankey to president and chief operating officer, making him the clear second in command to chairman and CEO Randall Stephenson.

Stankey’s new job, according to an AT&T press release is “bringing together the distinct and complimentary capabilities of AT&T Communications, WarnerMedia and [advertising subsidiary] Xandr to deliver…the benefits of a modern media company”.

He’s a career AT&T insider. For the present, Stankey’s “current WarnerMedia executive team” will report to him, meaning he’ll still be in charge of day to day operations there, while also having executive authority over AT&T’s distribution and advertising assets. It’s an open question whether he’ll try to use those assets, and the control over consumer broadband connections that come with them, to increase the profitability of the content arm. The republican majority on the Federal Communications Commission already cleared the path for him to do that, all he needs to do is start walking down it.

According to an update by The Information’s Jessica Toonkel, the promotion leaves everyone wondering whether Stephenson will stick around, and if he doesn’t, then what happens with WarnerMedia…

AT&T’s mandatory retirement age is 65 for top executives and Stephenson is only 59, which suggests there is no urgency. And as Stankey is 56, if Stephenson doesn’t retire early, Stankey may miss out entirely. If Stephenson waits another six years, AT&T’s board might focus on the next generation. But I hear Stephenson may choose to go earlier, which would give Stankey a shot.

That raises the question of who would succeed Stankey at WarnerMedia, including whether they bring someone in from outside. Cue the speculation. There are a lot of seasoned entertainment executives who are in circulation, thanks to various mergers.

So far, the trend has been for “seasoned entertainment executives” to walk away from AT&T’s management team.

Maine puts buy net neutral requirement on state, but not local agencies

by Steve Blum • , , , ,

Network neutrality is on the books in Maine. Governor Janet Mills signed legislative document 1364 into law last week. When it goes into effect later this year, the new law will require Internet service providers to sign net neutrality agreements when they do business with state agencies. They’ll have to pledge not to block or throttle Internet traffic on the basis of content, or engage in paid prioritisation – in other words, create fast lanes for their own content or for other customers…

E. “Net neutral service” means fixed or mobile broadband Internet access service that is provided without engaging in any of the following:
(1) Blocking of lawful content, applications, services or devices, subject to reasonable network management practices;
(2) Throttling; or
(3) Paid prioritization.
F. “Paid prioritization” means management of the network of an Internet service provider that provides broadband Internet access service to directly or indirectly favor some traffic over other traffic, either in exchange for monetary or other consideration from a 3rd party or to benefit an affiliated entity.

Net neutrality obligations do not apparently extend to local governments, however. The law applies to “a department, agency or instrumentality of the State” but not to “political subdivisions”, which is how local governments and agencies are usually referred to in Maine’s laws.

Maine’s net neutrality law is likely to have more practical impact than the version California passed last year. Senate bill 822 was challenged in federal court as the ink dried on governor Jerry Brown’s signature, and attorney general Xavier Becerra agreed not to enforce it until court challenges to the Federal Communications Commission’s repeal of net neutrality are complete, a process that could go on for several more years. A companion bill – SB 460 – which had the same kind of net neutrality purchasing requirements as Maine’s law was killed by lobbyists from AT&T, Charter, Comcast and other big telecoms companies that write big checks to California’s lawmakers.

“Epic livestream” to reinstate net neutrality marks anniversary of its demise

by Steve Blum • , , , ,

Open internet dont tread on me 2

It’s been a year since the Federal Communications Commission’s decision to scrap network neutrality rules took effect. So far, there’s no indication that wireline broadband providers have taken advantage of their new freedom to control the Internet, although mobile carriers apparently haven’t been as restrained.

To mark the day, an open Internet advocacy group, Fight for the Future, is doing a nine hour “epic livestream” to encourage the U.S. senate to pass a stalled net neutrality bill, and to generally make the case for freedom of access to the Internet. Shameless Plug Alert: I was invited to join the webcast, and I jumped at the chance.

In April, democrats in the U.S. house of representatives approved HR 1644, aka the Save the Internet Act, that would nullify the 2017 rollback, and reinstate network neutrality rules established in 2015 when the FCC also had a democratic majority. So far, the republican majority in the U.S. senate hasn’t done anything with it. There’s been talk that a symbolic effort to force a senate vote will be made today, and that’ll be the focus of Fight for the Future’s livestream event:

Watch widget screenshot 625

The FCC’s net neutrality rollback was also challenged in court. The federal appeals court based in Washington, D.C. – aka the D.C. circuit – heard oral arguments in February. There’s no way of knowing when the three judge panel will issue a decision, or what it will be. The FCC’s defence met with scepticism from one of the judges, but that’s poor basis for trying to make predictions. Whichever way it goes, the losing side has the option of asking the U.S. supreme court to take up the case.

That federal legal battle matters particularly in California, where a law reinstating net neutrality rules is in legal limbo. Senate bill 822 was passed by the legislature and immediately challenged in a Sacramento-based federal court by the federal justice department. Calfornia attorney general Xavier Becerra cut a deal with the Trump administration: enforcement of the new law and the Sacramento court challenge are both on hold until the challenge to the FCC ruling is resolved by the courts.

U.S. house passes net neutrality bill but leaves the devil in the details and its fate to the senate

by Steve Blum • , , , ,

El diablo

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.

Net neutrality bill with financial consequences passes Colorado legislature

by Steve Blum • , , ,

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.

Net neutrality bill moves ahead in U.S. house

by Steve Blum • , , ,

Net neutrality demonstration dc 300

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.