Tag Archives: netneutrality

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.

Big telecoms’ one net neutrality victory in California is the one that matters

by Steve Blum • , , , ,

The California legislature’s failure to pass senate bill 460 in August, following large cash payments to key lawmakers by big telecoms companies, might come back to haunt network neutrality advocates. Carried by senator Kevin de Leon (D – Los Angeles), he allowed it to be shuffled off to the side as lawmakers approved SB 822, a comprehensive net neutrality bill authored by senator Scott Wiener (D – San Francisco).

With some exceptions, SB 460 would have required state and local agencies to buy broadband service only from providers that abide by net neutrality principles. Given that it’s the big telecoms companies – AT&T, particularly, but also Comcast, Charter and Frontier – that dominate the government services market, it would have been a powerful incentive for them to stick to those rules.

It’s also much safer ground for state-level action. SB 822 is on hold, following a federal court challenge, and it could be years before it has any effect, even if it survives the legal process. But SB 460 was about public procurement policy, and that’s something that federal agencies, particularly the Federal Communications Commission, don’t have much, if any, control over.

The FCC’s top staff lawyer, general counsel Tom Johnson, conceded as much during a recent appearance at a Washington, D.C. event, according to a story in Politico

Although the FCC believes it can override state net neutrality laws like the one in California, it hasn’t yet settled the question of whether it can challenge efforts to make net neutrality a requirement for state government contracts, Johnson said. “The commission has not taken an explicit position,” he said, adding the FCC hasn’t sought to intervene in such procurement-related actions for that reason.

De Leon never seemed to have a particular passion for net neutrality. He backed several bills aimed at high profile issues this past year, as he tried to gain some traction in his ultimately futile attempt to beat Diane Feinstein in the race for her U.S. senate seat. He had a hard time articulating a coherent argument for his bill; during one committee meeting, Wiener had to step in and explain why both bills were needed.

SB 460 was necessary because SB 822 was, and is, resting on shaky legal ground. With it off the table for the foreseeable future and SB 460 trashed, California will end 2018 exactly the way it began it: with no net neutrality guarantees at all.

Whether net neutrality friend or foe, California lawmakers win landslide election victories

by Steve Blum • , , , ,

The major broadband players in the California legislature will be back in Sacramento when the new session begins in December.

The one exception is senator Kevin de Leon (D – Los Angeles). He ran out of time on California term limits and challenged U.S. senator Diane Feinstein. He’ll be unemployed at the end of the month, having lost to Feinstein, 46% to 54%. De Leon introduced one of two network neutrality bills that moved through the legislature this year, senate bill 460. Senator Scott Wiener (D – San Francisco), carried the other one, SB 822, which was a much more thoroughly thought out net neutrality measure.

SB 822 passed the legislature, was signed by governor Jerry Brown and was then put on hold by attorney general Xavier Becerra, in response to a court challenge by telecoms lobbyists and the Trump administration. SB 460 was trimmed back, and would have required state and local agencies to only buy broadband service from providers that abide by net neutrality principles. It was an important bill nevertheless, because it had a better chance of withstanding lawsuits. Despite that – or perhaps because of it – SB 460 died as the legislative session came to an end in August.

Wiener didn’t stand for election this year – his current term ends in 2020. But other key players in the net neutrality struggle did, and they were all reelected by substantial margins, whether or not they were helpful to the cause. Becerra beat his republican opponent by 61% to 39%. Assemblyman Miguel Santiago (D – Los Angeles), who tried to kill the net neutrality bills in the committee he chaired, walked home with 71% of the vote in his reelection race. His two wingmen in that attempt – assemblymen Eduardo Garcia (D – Imperial) and Evan Low (D – Santa Clara) – also won landslide victories.

So did assemblyman Rob Bonta (D – Alameda), who whomped his republican opponent 87% to 13%. Bonta deserves much of the credit for saving both Wiener’s and de Leon’s net neutrality bills in the assembly. He brought the warring sides together, after Santiago was slammed by online activists for his defence of big telecom interests.

Senator Ben Hueso (D – San Diego) will be back, too. He also won a lopsided contest against a republican challenger by 62% by 38%. Hueso sat out the net neutrality fight, but as chair of the senate’s primary telecoms committee, he has also been a good friend to AT&T, Comcast, Charter and the rest. Last year, he carried and vigorously advocated for senate bill 649, which would have given telecoms companies the right to attach wireless equipment to city and county-owned street light poles for below market, bargain basement prices.

Supreme court won’t review old net neutrality rules, but doesn’t kill them off either

by Steve Blum • , , ,

The federal supreme court will let network neutrality rules stand. Sorta. In a ruling made on Friday and released this morning, the supreme court said it wouldn’t review the 2015 decision by the then-democratic majority on the Federal Communications Commission to impose net neutrality rules.

The court’s ruling has no practical effect at the moment. Those rules were repealed by the new republican-majority FCC last year. But a federal appeals court did hear the challenge launched by telecommunications companies and said the FCC acted within its authority in 2015. That could have implications for a couple of other big net neutrality cases.

Telecom industry lobbying fronts and the current FCC asked the supreme court to summarily overturn the appeals court’s action. If the 2017 net neutrality repeal is thrown out by the District of Columbia circuit – the appeals court handling both cases – then the 2015 decision goes back into force, which would be inconvenient for them. In arguments submitted last month, the cable and telco lobbyists claimed that allowing the 2015 rules to lie dormant would make it harder for them to defend the gift they got from the FCC in 2018

Because various parties challenging the 2017 Order…are currently attempting to use the D.C. Circuit’s decision upholding the 2015 Order to support their challenges to the 2018 Order. As that fact demonstrates, absent action by this Court, the D.C. Circuit’s unreviewed and now unreviewable decision upholding the 2015 Order threatens to have ongoing consequences in the litigation of highly significant legal and policy issues.

They’ll have to live with those fears.

The supreme court’s ruling also tells us something about California’s net neutrality law, which is on hold after the same cast of characters – Trump administration lawyers, the FCC and telecoms lobbyists – challenged it in a Sacramento-based federal court. California attorney general Xavier Becerra backed down and iced the law until the 2017 FCC decision is fully litigated. This latest supreme court ruling comes three and a half years after the 2015 FCC decision, and if it had chosen to hear the case, it would have dragged on well into next year.

In other words, it’s going to be a long time before any net neutrality rules – Californian or federal – take effect, if they ever do.

Video downloads and all kinds of uploads driving Internet bandwidth demand

by Steve Blum • , , ,

Video accounts for 58% of Internet traffic worldwide, according to a new report by Sandvine, an Internet technology and research company based in Waterloo, Ontario.

Netflix accounts for nearly one-fifth of all the user download traffic in the Americas – more than any other company or protocol category – and five percent of all user upstream traffic. That makes it the number one bandwidth demand driver in this hemisphere. Netflix is in third place on the user upload side, behind raw video – surveillance cameras, for example – and bit torrent. Apple is also capturing a significant share of upstream traffic, with its iCloud photo service accounting for 3% of bandwidth. Netflix’s upstream consumption was unexpected, according to the report

MPEG (video cameras/surveillance) and HTTP media streaming (many different live streaming services) make sense, but why Netflix? Netflix is constantly “bookmarking” your location; as users browse the library, Netflix interactively starts video previews, which has had a huge impact on the upstream. This has made video a major player in the upstream, even with social networking video having less impact than expected on networks…

iCloud Photo Stream makes the first appearance for an Apple product as well as a storage application, illustrating the popularity of mobile photos that immediately get uploaded to the cloud. Photo traffic is also part of the Google number from Androids. There are also lots of VPNs in the Americas, as IPSec is 10th on the list at 2.65%, representing both business users and privacy VPN services.

Mobile operators seem to be hardest hit by the increasing demand for bandwidth, in either direction. They’re responding by giving users incentives to consume less…

It also bears mentioning that the number of mobile operators managing video traffic by offering unlimited viewing for reduced resolutions, which is also depressing the volume of video traffic worldwide.

Encryption continues to grow in popularity, too. Sandvine reports that more than half of the world’s Internet traffic is now encrypted.

Real people want neutrality, bots not so much Stanford study shows

by Steve Blum • , , ,

The comments submitted to the Federal Communications Commission in 2017 by real people were overwhelmingly in favor of keeping network neutrality rules in place. A study by Ryan Singel at Stanford University’s Center for Internet and Society analysed the 22 million comments submitted via the FCC’s online portal – the one that crashed in 2014 after John Oliver explained what it all meant – and found that most filings were robo-comments submitted by online bots, or were otherwise duplicate, boilerplate auto-postings.

But not all. The study identified more than 800,000 unique comments that could be reasonably attributed to real people. Nearly all of those comments – 99.7% – urged the FCC to keep the 2015 net neutrality rules in place, with 14% of the total coming from California. The FCC didn’t bother to do that level of analysis – the commission’s republican majority preferred to highlight the relatively few anti-net neutrality comments when it repealed the 2015 rules last year.

The study also found that geeky details of telecommunications regulation aren’t so arcane any more, and interest in and knowledge of those details are at least as prevalent in rural areas as in urban areas…

Support for net neutrality protections is geographically widespread. Contrary to assertions that rural voters don’t care about net neutrality, the reports show that ​citizens in rural areas who have extremely limited choice of broadband providers are concerned about what happens if their only choice of broadband provider is allowed to block, throttle or create paid fast lanes.

Contrary to assertions that net neutrality supporters don’t understand the issue, the reports show that commenters grasp the issue​​, including many referencing the once-arcane issue of whether the FCC classifies broadband providers under Title I or Title II of the Communications Act.

Another interesting finding was that net neutrality is a hotter topic in congressional districts with competitive races, than in districts with safe seats, republican or democrat. Given the heightened interest in California – and in the San Francisco Bay Area in particular, according to the study – the successful push by democrats to pass a Californian net neutrality law was probably a smart political move, despite republican efforts to downplay the issue.

California’s net neutrality law won’t take effect in January, if it ever does

by Steve Blum • , , ,

It will be a long time before California’s new network neutrality law will be enforced, if it ever is. California attorney general Xavier Becerra cut a deal yesterday with the Trump administration and lobbyists who front for a long list of telecoms companies, including AT&T, Charter Communications, Comcast and Frontier Communications. In return for their pledge not to pursue their court case against the law, Becerra agreed not to enforce the new law until a separate legal challenge to the Federal Communications Commission’s decision to repeal its own net neutrality rules has worked its way through the system and, after that, until the Sacramento court hearing the case against senate bill 822 decides whether or not to block it.

The reason given was that all involved – California, the federal justice department and telecoms companies – wanted “to avoid a waste of judicial and [their own] resources”.

That could take years. The District of Columbia appeals court hearing the case against the FCC is scheduled to hear oral arguments in February, with the expectation that a decision would come later on in 2019. If – when – that decision is appealed to the federal supreme court, SB 822 would stay on ice until a final-final ruling is issued. That could take a while. As a point of reference, the legal challenge to the FCC’s 2015 net neutrality rules (that were scrapped in 2017) has been going on for three and a half years, with no end in sight.

Becerra also promised “not to not take any action to enforce” the law, “including through participation in any private action seeking to enforce senate bill 822”. Which implies that private lawsuits are still possible, as allowed by the Californian consumer rights law that SB 822 was grafted onto. Even if that were true, though, I doubt private lawsuits will get very far until the legal cloud over SB 822 is lifted.