Tag Archives: netneutrality

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.

Net neutrality back in play in U.S. congress as democrats offer new bill

by Steve Blum • , , ,

Congressional democrats are taking another run at overturning the Federal Communication Commission’s 2017 decision to scrap network neutrality rules. Yesterday, amid much fanfare, a draft of a bill was released that would nullify the 2017 decision by the FCC’s republican majority and reinstate the 2015 decision by the then democratic majority to regulate broadband as a common carrier service. Along with that decision came bright line rules: no blocking, throttling or paid prioritisation of subscriber traffic by Internet service providers.

Technically it’s two identical bills, one each for the senate and the house of representatives. But as a practical matter it’s one piece of legislation.

Although the language is necessarily different, the bill would do pretty much the same thing as last year’s attempt to block the FCC’s net neutrality repeal via the Congressional Review Act. Enough republican senators jumped ship to approve the measure, but house republicans did not follow suit and it died.

This latest bill goes one step further. It forbids the FCC from trying again, saying the 2017 repeal “may not be reissued in substantially the same form”.

Reaction was predictably split on partisan lines. For example, republican FCC chair Ajit Pai’s office released a statement condemning the new bill, while democratic commissioner Jessica Rosenworcel praised it.

There seems to be no rush to get the bill in motion, though. House speaker Nancy Pelosi said it would be “a matter of weeks” before any action is taken. Since democrats control the house of representatives, the bill is likely to pass there first, assuming telecoms lobbyists don’t succeed in buying off federal lawmakers, as they were nearly able to do last year in California.

Republicans control the senate, by a bigger margin than they did last year, so there’s no guarantee that a 51 vote majority can be found there, let alone the 60 votes needed to stop the inevitable filibuster.

Federal appellate judges skeptical of FCC’s net neutrality reasoning

by Steve Blum • , , ,

Network neutrality advocates faced off against the Federal Communications Commission and its telecoms industry partners in a federal appeals court in Washington, D.C. on Friday. For more than four hours, a panel of three federal judges grilled both sides as they considered whether the FCC acted “arbitrarily and capriciously” when it rolled back net neutrality rules in 2017.

The central question is whether broadband service is a simple telecommunications service – like phone service – or a value-added information service. FCC lawyer Tom Johnson insisted that the traffic management and routing technology that enables communication via the Internet – the domain name system and caching – is fundamentally different from the traffic management and routing technology that makes it possible to dial a phone number.

Judge Patricia Millett didn’t seem to buying that argument…

Millett: They both have the capability, the capability of acquiring information, receiving information, through a telephone as much as…

Johnson: Under the broader theory that these are broad statutory provisions in which we are able to make different classification decisions based on the fact that we’re talking about different services here.

Millett: That’s what I’m trying to figure out, are you talking about different capabilities between phones and if someone uses Facetime?

Johnson: Yes, your honor, we just don’t think that phone service in offering a pure transmission pathway for ordinary voice communication offers the same dynamic experience that broadband does in accessing the Internet, but in addition it also offers…

Millett: I hear you saying those words, I’m really trying to make sure I’m understanding what the difference is, because people use telephones to acquire all kinds of information…If I want to get information from my pharmacy – I’d like to have something refilled – I can call over the phone and push a bunch of buttons and eventually I’ll have a prescription refilled. I can also go on the website and type in and tell the doctor’s office I’d like a prescription refilled. But it seems to be the exact same functionality. One is voice and one is typing, but that can’t be difference.

Johnson never directly answered Millett’s question. His defence was that there was sufficient ambiguity in federal law to create an opening for the FCC to exercise its discretion as the federal government’s expert agency in these matters. Typically, federal courts defer to that – they don’t consider whether an expert agency made the best decision, but rather whether the decision reached was one of many possible and reasonable interpretations of the facts and the law.

The plain fact is that broadband is a telecommunications service. People use it to transmit and receive information between two point without changes. The give and take at Friday’s hearing indicates that the three judges understand that point well.

Listen to the hearing here.

New year but old questions for technology and telecoms policymakers

by Steve Blum • , , , ,

Five major broadband issues will top the public policy charts in California and at the federal level in 2019. In no particular order…

  • Net neutrality – The ball is in a federal appeals court in Washington, D.C., where arguments will be heard in February over whether the Federal Communications Commission acted properly in 2017 when it declared broadband is not a telecommunications service. California’s net neutrality law is on hold until that case plays out, which could take years. Congress is unlikely to act. In 2018, house democrats couldn’t even agree amongst themselves whether to overturn the FCC decision.
  • Privacy and data ownership – Big corporations with big political budgets will be urging congress, on the one hand, to preempt state privacy legislation with friendlier federal rules, and on the other hand they’ll be trying to water down California’s new privacy law. A bill that’s already been introduced in Sacramento could do that. The larger debate – who owns customer data, consumers themselves or the companies they share it with? – is just beginning. Congress, courts, regulators and administrators will be involved, but tech companies can get in front of the issue. 2019 is their opportunity to offer answers. If they don’t, governments will decide for them.
  • Monopoly vs. competition – Courts and regulatory agencies will decide whether competition continues to shrink as monopoly model ISPs grow. T-Mobile’s takeover of Sprint is under review by the FCC and the CPUC. The federal justice department gets a look too, and it continues to challenge AT&T’s purchase of Time Warner in court. Cable and telco lobbyists are whispering wishes into compliant republican ears at the FCC, this time with the aim of killing municipal broadband competitors. The CPUC looks at broadband affordability and the future of PG&E, one of the few remaining sources of independent dark fiber. It also has to decide if it’s serious about the conditions it puts on mergers and acquisitions, as it did with Charter’s purchase of Time Warner cable systems.
  • Local ownership and authority – Another federal court fight heats up, as an FCC order regarding wireless facilities is otherwise set to take effect on 14 January 2018. It limits what local government can do with property they own in the public right of way, restricts their authority to review permit applications, and sets shorter shot clocks for decisions. Lobbyists and lawyers for mobile carriers are already using the order to try to force cities to do their bidding, and they’ll be handing out cash to legislators in Sacramento, while asking them to bake FCC rules into California law.
  • Broadband infrastructure subsidies – Applications for grants from the rebooted California Advanced Services Fund (CASF) are due in April, and in a couple of weeks incumbent Internet service providers have a chance to exercise the right of the first night first refusal that California lawmakers gave them in 2017. Cash payments from AT&T, Comcast, Charter and other monopoly model ISPs tilted the playing field. The California Public Utilities Commission tried to level it a bit; we’ll see in the next few months whether CASF will improve broadband access in rural California, or simply be a $300 million slush fund for telcos and cable companies. The federal agriculture department is rolling out a $600 million rural broadband grant and loan program, with billions more on the way, and it’s better designed to benefit rural communities.

The players are changing, too. New CPUC and FCC commissioners will take their seats, and a new administration takes office in Sacramento. Not much has changed at the California legislature, though. Democrats have a super majority in both houses, with familiar faces leading key telecoms committees. Charter, Comcast, AT&T and Frontier know where to send the checks.

New congress, old issues return to Washington, D.C. in 2019

by Steve Blum • , , , ,

There were two wins for broadband development policy in Washington D.C. this year, and both were backed by agriculture interests. In March, a big federal spending bill passed, with $600 million going to the new ReConnect broadband infrastructure grant and loan program, and the once-every-five-years farm bill was approved earlier this month, with at least $1.7 billion more for similar purposes.

Congress didn’t do much else, though.

Unless there’s a surprise on Monday, the year will end with one empty seat on the Federal Communications Commission. Geoffrey Starks was appointed to fill a democratic party slot, but the senate never confirmed the nomination. Nor did it renew republican Brendan Carr’s term as an FCC commissioner. Disputes over the FCC’s mobile broadband rural telehealth subsidy programs stalled votes. Starks will have to be reappointed; absent another nominee, Carr will be able to serve for two more years.

Other unfinished business at the federal capitol includes…

  • Net neutrality – the senate voted to block the FCC’s rollback of network neutrality rules in May, but there wasn’t enough support in the house of representatives to bring the resolution of disapproval to a vote. Only one republican signed on to it, and it didn’t even get full support from democrats.

  • Privacy and social media – we saw lots of hearings and some disturbingly ignorant questions from elderly lawmakers, but no action on privacy legislation in D.C. Pressure is building for federal preemption, though, as a response to California’s new privacy law and similar initiatives in other states.

  • Mobile spectrum and small cell deployment – two mobile broadband policy bills by the republican majority’s point man on telecoms issues in the senate – John Thune (R – North Dakota) – are dead. The Streamline act, would have baked much of the FCC’s local pole ownership preemption into law. The Mobile Now act was aimed at opening up more spectrum for both licensed and unlicensed broadband service.

  • Municipal broadband – a bill introduced by Silicon Valley representative Anna Eshoo (D – Santa Clara) and trashed by key committee chair Marsha Blackburn (R – Tennesse) would have preempted state-level restriction on muni broadband service. Another Eschoo bill would have imposed dig once requirements on federal highway projects. Neither bill made it out of the starting blocks.

Next year, democrats take over as majority party in the house, Blackburn moves to the still-republican controlled senate, and Thune moves up the republican leadership food chain. Conventional wisdom says the two houses will deadlock, with even less chance of meaningful telecoms policy legislation being passed.

In other words, expect nothing to change.

U.S. mobile carriers asked to explain tests showing they throttle particular video providers

by Steve Blum • , , , ,

Three U.S. senate democrats are calling out the four major mobile carriers on their throttling and prioritisation policies. Senators Edward Markey (D – Massachusetts), Richard Blumenthal (D – Connecticut), and Ron Wyden (D – Oregon) sent joint letters to the CEOs of AT&T, Sprint, T-Mobile and Verizon, asking them to explain results from an Internet traffic testing app that indicate they’re deliberating slowing some traffic down…

We write to express our concern that mobile carriers may be inappropriately throttling and prioritizing internet traffic from common mobile apps without the knowledge of their customers. Through the use of the app Wehe, researchers recently identified numerous instances of cellular providers throttling video and communications services.’ Such practices would violate the principles of net neutrality and unfairly treat consumers who are unaware that their carriers are selecting which services receive faster or slower treatment…In light of this study, we write to ask you about your policies regarding the treatment of internet traffic.

The companies are not obligated to respond and, given that the U.S. senate will remain in the control of republicans, the threat of a hearing or other compulsory action isn’t readily apparent. But it could be embarrassing, and it’s a good bet that the three senators will make the most of that opportunity, should it arise.

On the other hand, if they do respond, it’ll be interesting to see what they say. And particularly interesting if AT&T CEO Randall Stephenson cops to throttling the three video services – YouTube, Netflix, and NBC Sports – that the letter calls out. His chief staff lobbyist in Sacramento, Bill Devine, claimed that AT&T does not “degrade Internet traffic” during hearings on senate bill 822 – California’s net neutrality law – earlier this year. He didn’t stick to the truth in other respects; the question now is whether his boss will try to bluff it out too.