Tag Archives: netneutrality

No power to regulate broadband means the FCC has no power to preempt California’s net neutrality law

by Steve Blum • , , ,

California is firing back at the monopoly model telecoms companies that want to block the state’s network neutrality law. Senate bill 822 was passed by the legislature and signed by governor Jerry Brown in 2018. It’s been on hold while a court fight over the Federal Communications Commission’s repeal of its own net neutrality rules played out.

Now it’s in front of a federal judge in Sacramento. The job of defending SB 822 belongs to California attorney general Xavier Becerra. His office filed its first full response to the claim that SB 822 is preempted by the FCC’s decision.

When the FCC declared that broadband is an “information service” and not a common carrier “telecommunications service”, it put broadband into a category of services that it’s not allowed to regulate in any meaningful way. That lack of authority was the FCC’s basis for repealing net neutrality rules: no authority means no rules.

In the brief, the California attorney general’s office argues that if there’s no authority to regulate, then the FCC also lacks authority to preempt state laws in that regard. That’s taken directly from the D.C. appellate court decision last year that mostly upheld the FCC’s net neutrality repeal. One big exception was the FCC’s attempt to impose a blanket preemption on state level broadband regulations.

Consequently, the brief concludes, California can go its own way…

The FCC repealed the bulk of the [Obama era net neutrality rules] because it determined it had no statutory authority to impose net neutrality conduct rules on [broadband] providers. That is different from a congressionally-authorized decision to refrain from regulating [broadband] providers; therefore, the repeal does not have preemptive force. That SB 822 enacts many of the same net neutrality protections repealed by the 2018 Order does not, in and of itself, result in conflict preemption. It is “quite wrong” to view the absence of federal regulation, on its own, “as the functional equivalent of a regulation prohibiting all States and their political subdivisions from adopting such a regulation.”

The first decision that federal judge John Mendez has to make is whether to ice California’s net neutrality law while the court battle drags on. If he says no and rejects Big Telecom’s request for a preliminary injunction that would block enforcement of SB 822, net neutrality will be the law of the land in California.

AT&T guilty of obfuscation, delay, deception, inaccuracy, evasion, omission and contradiction regarding 911 service, CPUC says

by Steve Blum • , , , ,

Bluto pencils

AT&T has to pay a $3.75 million fine because of its “pattern of obfuscation, delay, and deception” in dealing with the California Public Utilities Commission, and the “inaccuracy, evasion, omission, and contradiction” in its description of its 911 service. The core issue was whether AT&T is required to file particular paperwork regarding next generation 911 services. The answer from the CPUC is an emphatic yes. AT&T’s refusal to do so and the manner in which it refused earned it the multimillion dollar fine.

The CPUC’s unanimous vote upholds a ruling earlier this year by an administrative law judge. AT&T appealed to the commission, claiming it had done no wrong because it merely slipped through legal loopholes created by differences in technology.

It’s a claim AT&T continues to make, most recently when it objected to new CPUC disaster readiness rules. That argument was debunked by the commission’s decision, which reiterated that 911 service is 911 service, regardless of how it’s provided or what network segment of the 911 system is being provided…

The Commission seeks to protect Californians who need safe energy delivery and reliable communications through the natural and man-made disasters to which California is increasingly prone. The Commission’s need for “accurate information from the utility in order to, among other things, ensure that it is providing just, reasonable and safe service” is acute, given the inherent information asymmetry between regulator and regulated entity. AT&T has not provided accurate information pertaining to the issues before us…

Emergency service tariff violations are not garden-variety regulatory misfeasance. The transport of emergency communications is a life and death matter. The difference between transport that guarantees 98%, 99.9% or 99.999% availability for a given trunk line can well mean the difference of an ambulance or fire truck that arrives on time and one that does not.

If anything, the decision said, the $3.75 million fine “may even be too modest” because of AT&T’s “financial resources” and the severity of its violation of “the public trust attendant on the utility services it provides”.

Commissioners made one significant change to the penalty. Originally, AT&T would have been given 30 days to file the necessary paperwork, and if it didn’t, the fine would have doubled to $7.5 million. Instead, AT&T will be fined $15,000 for every day it’s late.

Net neutrality returns to California, in law and in court

by Steve Blum • , , ,

Zero rating destroys internet

Once again, network neutrality is law of the land in California, although there’s not much practical effect yet. Two years ago, the California legislature passed and governor Jerry Brown signed senate bill 822, authored by Scott Wiener (D – San Francisco). It bans blocking, throttling and paid prioritisation of Internet traffic on the basis of content, including specifically zero rating in-house content, as AT&T and other wireless carriers do.

The Trump administration and lobbying fronts for major telecoms companies immediately filed a challenge in a Sacramento federal court. California attorney general Xavier Becerra agreed to put the law on hold until appellate challenges to the Federal Communications Commission’s 2017 repeal of net neutrality rules were resolved.

That’s a done deal now. A federal appeals court ruled last year that the FCC’s action was mostly correct. Among the exceptions was the bit of the net neutrality repeal order that banned states from taking action. The FCC is scrambling to plug that loophole, and other federal laws may end up having the same effect anyway, but the odds of SB 822 surviving are better than they were.

The net neutrality advocates behind the appeal asked the court to reconsider, which it declined to do. They then pondered whether to take it the to federal supreme court, eventually deciding not to do so last month.

The final thirty day waiting period expired last week. As it did, the Trump administration and the lobbyists and lawyers for cable, telcos and wireless carriers went back to Sacramento and renewed their pleas to block California’s law, which Becerra, in theory, should now be enforcing.

Becerra hasn’t revealed any plans he might have. He’s found the time to issue a press release on migratory birds, but so far not a word about net neutrality. It would make sense for him to wait until the judge hearing the challenge to SB 822 decides whether to put it on ice while the case grinds on. It might also make sense – to Becerra, at least – to hold off antagonising the big telecoms companies that have been so generous to him in the past.

Muni broadband, net neutrality get bland nods in Biden’s peace treaty with Sanders

by Steve Blum • , , , ,

Sanders biden

Joe Biden’s campaign agreed to a skeletal broadband policy in what amounts to a peace treaty with Bernie Sanders and his supporters. The “unity task force recommendations” published on Wednesday amount to little more than a declaration that broadband is good, but it’s the first time that Biden has explicitly signed on to any conventional democratic party positions on telecommunications policy.

The document has the usual nice words about broadband being essential to life in the 21st century, with the standard nod to education. It makes a constitutionally dubious pledge to remove state bans on municipal broadband projects and to spend money on all types of infrastructure, including, particularly, muni broadband.

Network neutrality gets a mention. The “recommendations” propose to…

Restore the FCC’s clear authority to take strong enforcement action against broadband providers who violate net neutrality principles through blocking, throttling, paid prioritization, or other measures that create artificial scarcity and raise consumer prices for this vital service.

Presumably, what they really mean is that Biden will appoint FCC commissioners who will use the “clear authority” that already exists. Which means policy ping pong will continue. During the Obama administration, the democratic majority on the Federal Communications Commission classified broadband as a regulated common carrier service. The Trump administration’s republican led FCC said it wasn’t.

The recommendations don’t explicitly promise to restore broadband’s common carrier status. There are other ways of imposing net neutrality obligations on Internet service providers, as California discovered. Initially, the Obama era FCC proposed a no lobbyist left behind approach that would have allowed monopoly model incumbents to negotiate permission for decidedly non-neutral network management practices.

Direct intervention by the Obama white house put an end to that pretence. Whether a Biden administration would do the same is an open question. Biden has enjoyed a long and comfortable political career in a system fuelled by, and largely subservient to, cash from corporations and labor unions. The peace treaty with Sanders doesn’t change that reality.

AT&T blows off net neutrality as it zero rates HBO Max

by Steve Blum • , , , ,

Marvin fire

AT&T is giving its HBO Max streaming service a free ride on its mobile broadband network. The bandwidth consumed by AT&T mobile customers while watching HBO Max programming won’t be counted against their monthly data caps. According to a story in The Verge by Nilay Patel, AT&T’s streaming competition won’t get the same zero rating treatment…

HBO Max, AT&T’s big bet on the future of streaming, will be excused from AT&T’s mobile data caps, while competing services like Netflix and Disney Plus will use up your data…

AT&T…confirmed to The Verge that HBO Max will be excused from the company’s traditional data caps and the soft data caps on unlimited plans.

The story goes on to say that AT&T offers other streaming platforms the opportunity to pay for the bandwidth their subscribers consume, but none have found the deal compelling enough to take it. It works for AT&T because it’s just taking money out of its HBO Now pocket and putting it into its AT&T mobile pocket.

Whether it’s a privilege it reserves for itself or one it sells to others, AT&T’s zero rating tactic is the kind of conduct that network neutrality rules are intended to stop. If there were network neutrality rules. The current Federal Communications Commission thinks zero rating and pretty much anything else AT&T does is just fine – that’s why the republican majority voted in 2017 to repeal the net neutrality rules established during the Obama administration.

It’s different in California, sorta. A law passed in 2018 bans “zero-rating some Internet content, applications, services, or devices in a category of Internet content, applications, services, or devices, but not the entire category”, or accepting payment to do so. Unfortunately that law – senate bill 822 – is on ice right now. California attorney general Xavier Becerra agreed not to enforce it while appeals of the FCC’s 2017 decision work their way through the federal courts.

A federal appeals court in Washington, D.C. refused in February to reconsider its earlier decision (mostly) upholding the FCC’s net neutrality rollback. The nominal 90-day deadline for taking it to the federal supreme court passed without action last month. The net neutrality battle could be back in California soon.

Cable, mobile companies fight rollback of perks they’ve paid California lawmakers big bucks to write

by Steve Blum • , , , ,

Special privileges that cable companies and mobile carriers have bought from the California legislature over the years could be rolled back a bit if two bills approved by the California senate’s energy, utilities and communications (EU&C) committee make it into law.

Senate bill 1058, authored by Ben Hueso (D – San Diego), would require “every Internet service provider” (as the legislative counsel’s digest put it) to “file an annual emergency operations plan” with the California Public Utilities Commission. Besides information about emergency operations and contact information for state and local officials, as currently written the bill effectively requires ISPs to offer “an affordable class of broadband Internet service” to people locked down or displaced by a disaster and to provide “capital expenditure plans for broadband expansion” to the CPUC annually.

Every ISP means just that. Any “business that provides broadband Internet access service” to any customer will have to comply. That prospect upset lobbyists for cable companies and mobile carriers, particularly. Their Sacramento front organisations led the opposition to the bill. Despite that, it was approved on a 10 to 3 party line vote.

SB 1069, carried by Hannah-Beth Jackson (D – Santa Barbara), is a bit more subtle, but will be equally, if not more, disruptive to the cozy regulatory carve outs that lobbyists for mobile carriers, like AT&T, Verizon and T-Mobile, and cable companies, like Comcast, Charter Communications and Cox, have paid millions of dollars to lawmakers over the years to create and preserve.

On its face, the bill requires “telecommunications service” providers to deliver more and better information about “critical communications infrastructure” to state and local officials during a disaster. But it also ropes ISPs and broadband networks, respectively, into those categories by expanding the definition of telecommunications service to include voice over Internet protocol (VoIP) service and the infrastructure – i.e. broadband networks – that carry it. That also brought howls of protest from the cable and mobile minions, who rightly fear that the change will breach the regulatory firewall between themselves and legacy copper telephone companies that they’ve spent so much money building.

It’s just a chip in the firewall, though. The Federal Communications Commission and, so far, federal courts perpetuate the fiction that identical functionality is a “telecommunications service” when provided via one type of technology – legacy telco copper – but is an “information service” when delivered over another type – Internet protocol-based broadband systems.

Both bills, along with SB 1130, which upgrades California minimum broadband standard to symmetrical 25 Mbps download and upload speeds, head to the California senate appropriations committee. The real work of the appropriations committee is done behind closed doors by legislative leadership, which makes it the preferred killing ground for bills that offend cash laden lobbyists.

It became necessary to govern free speech to save it

by Steve Blum • , , ,

Trump 625

“It became necessary to destroy the town to save it”.

Unidentified U.S. army major to Associated Press reporter Peter Arnett, Bến Tre, Republic of South Vietnam, 7 February 1968.

The freedom to express and debate ideas is the foundation for all of our rights as a free people…It is the policy of the United States to foster clear ground rules promoting free and open debate on the internet. Prominent among the ground rules governing that debate is the immunity from liability created by section 230(c) of the Communications Decency Act.

U.S president Donald Trump, executive order signed 28 May 2020, Washington, D.C.

It’s tempting to dismiss yesterday’s executive order as just another tantrum that’ll be squashed by a federal judge almost as quickly as it’ll be forgotten. But there’s real danger in it, even if Trump is no longer president by this time next year. He’s asking the Federal Communications Commission to decide who is worthy of free speech and free press rights on the Internet, and who is not. That’s dangerous.

The impulse to perceive bias when a newspaper or broadcaster or online platform fails to fully appreciate the words and actions of self proclaimed political geniuses is as prevalent on the left as it is on the right. Accusations of bias are levelled at technology companies on a daily basis, from across the political spectrum. As are demands that government do something about it.

Giving any government agency leeway to think it’s responsible for ferreting out bias among public speakers or publishers – of any medium – is perilous enough under any circumstances, but it is catastrophic when the agency involved is as structurally political and as enmeshed in the basic infrastructure of our economy and polity as the FCC.

If you think that’s over the top, I suggest you take a look at what’s going in Hong Kong right now.

AT&T blasts loopholes as it tries to escape $3.75 million fine in California

by Steve Blum • , , , ,

As expected, AT&T appealed a 3.75 million fine levied by a California Public Utilities Commission administrative law judge for “wilful disregard” of its public safety obligations. The penalty followed months of wrangling with CPUC staff over what kind of information AT&T is required to provide about services, such as 911 emergency calls, that ride on voice over Internet protocol technology (VoIP).

AT&T’s appeal dives headfirst into the minutia of how 911 service is provided now, and how it will be provided once it’s completely switched over from legacy plain old telephone service (POTS) to modern digital technology. It also twists and turns through the legal technicalities of when and how it’s supposed to keep the CPUC informed, and whether breaking a particular rule is one time thing or a continuing violation. Maybe that tactic will work. If, say, AT&T can convince commissioners, or maybe a California court down the road, that there’s a loophole that allows them to refuse to give the CPUC information about rates and terms for a particular service, then that might enough to get them off the hook.

But that won’t answer the fundamental policy question of whether the CPUC can and should regulate modern telecommunications platforms that provide similar – if not the exact same – service as old school POTS. In its appeal, AT&T did not repeat its previous Alice in Wonderland argument that telephone calls made with one kind of digital technology are a telecommunications service, while identical calls made with another kind are not. It did, however, cite a California law that expired at the end of last year that generally blocked the CPUC from regulating VoIP or other Internet protocol enabled services. As the CPUC defines its role in regulating VoIP and other de facto digital telecommunications services, AT&T and other monopoly model telco and cable incumbents will be back in Sacramento, trying to resurrect that ban.

CPUC whacks AT&T with $3.75 million fine for “wilful disregard” of public safety obligations

by Steve Blum • , , , ,

AT&T was ordered to pay a $3.75 million fine by the California Public Utilities commission for blowing off demands for information about its 911 service in 2019. Administrative law judge Karl Bemesderfer issued a “presiding officer’s decision” in a disciplinary proceeding launched last year after AT&T refused to file reports detailing its rates and terms for “next generation” 911 services that ride on Internet protocol technology, rather than old style plain old telephone service.

Besides being a sizeable slap to AT&T, the decision is a reminder that defiance of CPUC directives can be expensive. That’s something T-Mobile and Sprint might take notice of: if wrangling over informational filings is worth a fine of a few million dollars, how much does it cost to baldly merge two giant companies without permission?

The decision blasted “AT&T’s wilful disregard for the State of California’s obligation to ensure the public’s safety through oversight of the 911 system”…

We conclude that by their deliberate repeated refusals to respond appropriately to the letters from [CPUC communications division director Cynthia] Walker, their knowing misrepresentations regarding their handling of 911 traffic, and their deliberate ignoring of [a commission decision and general order], and applicable law, Respondents have engaged in conduct that merits a fine…

We conclude that Respondents’ conduct is not so egregious as to merit a maximum fine nor so excusable as to merit a minimum fine. For their repeated refusal to respond to the letters from Director Walker we find that a fine of $10,000 per day or $2.5 million is appropriate; for their misrepresentations regarding the handling of 911 traffic and their deliberate disregard of [a commission decision], we find that a fine of $5,000 a day or $1.25 million is appropriate, for a total fine of $3.75 million.

If AT&T doesn’t immediately file the necessary information, the fine will double to $7.5 million.

The decision doesn’t try to carve out new regulatory territory for the CPUC. Although the service in question is delivered via voice over Internet protocol (VoIP) technology, which the CPUC was generally barred from regulating until this year, there was an exception for 911 service.

AT&T, or anyone else with a particular interest, have until the beginning of May to file an appeal, and CPUC commissioners can request a review. Assuming AT&T appeals, as it certainly will, the fine will be put on hold until the process plays out.

Accidentally honest AT&T tells CPUC to grab the horse by the tail and face reality

by Steve Blum • , , , ,

Chp horses capitol 3feb2016

Unintentionally, an AT&T witness injected an insight of startling clarity into the debate over whether or not broadband is a common carrier service. It happened during a hearing to determine if the company should be held in contempt of California Public Utilities Commission orders. The witness was discussing the difference between legacy digital methods for transmitting telephone calls and contemporary Internet protocol technology.

He said…

It’s like the difference between a horse and buggy, and an automobile.

Just so.

That difference is one that the California legislature reckoned to be irrelevant more than 100 years ago, when it rewrote the regulations for common carrier passenger road transportation.

Today, if you want to offer point to point road transportation service in California, you need to be certified as a “passenger stage corporation” by the CPUC. Passenger stage now includes passenger buses and passenger vans, but stage is a term that goes back to Gold Rush days and beyond, when horsepower meant horses. Originally, it referred to segments of a journey. Over time, it became the name of the horse drawn vehicle being used – stagecoach turned into stage.

Transportation was undergoing the same, radical technological shift in the early decades of the twentieth century that telecommunications is today. What didn’t change was the even older concept of a common carrier service, one that was available to all at published prices and level terms.

The California legislature decided in 1917 that it’s the service that’s important, and not the underlying technology. It passed a law defining a transportation company as any person or corporation that owned or operated “any automobile, jitney bus, auto truck, stage or auto stage used in the transportation of persons or property as a common carrier for compensation over any public highway in this state between fixed termini or over a regular route”, unless it was completely within the borders of a city. The “railroad commission of the State of California” – later to become the CPUC – was “vested with power and authority to regulate every transportation company in this state”.

As we say these days, the law was technology neutral. The details of the statute have changed over the years, but the fundamental principles and terminology haven’t. Regardless of what powers the vehicle, companies carrying people and cargo for hire are providing a legally identical, common carrier service.

Horse and buggy or automobile. TDM or IP. Candlestick phone or VoIP modem. It doesn’t matter.

It’s the same service.