Tag Archives: netneutrality

Pai offers net neutrality rules custom made for AT&T’s, Comcast’s business models

by Steve Blum • , , , ,

Pai shapiro 1 ces 7jan2020

Ajit Pai’s three-year delayed debut at CES as Federal Communications Commission chair last week was a friendly, and at times lighthearted, conversation with Gary Shapiro, the CEO of the Consumer Technology Association, which produces the show. Pai used the opportunity to float what he seems to thinks are consensus network neutrality rules. What he’s really proposing is to cement major ISPs and mobile carriers’ monopoly model business plans into federal law.

Shapiro led off by asking Pai about the FCC’s decision to scrap network neutrality rules two years ago. Pai endorsed net neutrality legislation. But of a sort…

Let’s focus on the things that we can actually agree on, those core principles of an open internet that we all agree upon – no blocking, no throttling, no anticompetitive conduct, transparency – I’ve just described in five seconds a bill that should sail through congress, but this has become more of a political issue than a policy one.

He left a couple of items off the list, at least the list that net neutrality advocates keep: paid prioritisation and zero rating. Those are two related practices that big, monopoly model Internet service providers – AT&T and Comcast, for example – and mobile carriers dearly want to hold onto.

When an ISP zero rates particular content, it doesn’t count the bytes consumed against a user’s monthly data cap. Paid prioritisation happens when an ISP creates a fast lane for content it owns – say, AT&T sending you Road Runner cartoons that it owns faster than Disney movies that it doesn’t – or charges the owner a fee for the same treatment.

Both practices create a hierarchy of content, as a result of an ISP’s ability to manipulate data streams to suit its bottom line. There’s not a meaningful difference between deliberately speeding some content up, versus deliberately slowing – throttling – other content down. Limiting legislation to a carefully wordsmithed consensus allows telcos and cable companies to write U.S. telecoms policy, and lock in privileges for decades to come.

Internet regulation is at the top of California’s 2020 policy wish (or wish not) list

by Steve Blum • , , , ,

2020 might be the year that the State of California figures out what, if any, role it will play in regulating (or not) broadband service and infrastructure. As of tomorrow, the California Public Utilities Commission is no longer barred from regulating services like VoIP (voice over Internet protocol). A 2012 state law that said the CPUC couldn’t do that expired at the end of 2019.

But that doesn’t mean that anything is decided.

AT&T and its fellow monopoly model Internet service providers tried to get an extension of that ban approved in the California legislature this year. Assembly bill 1366 made it through the gauntlet of committee hearings to pass in the assembly and nearly reach a floor vote in the senate. It was finally stalled by opposition from the Communications Workers of America – organised labor contributes even more money and other kinds of support to California politicians than cable and telephone companies.

Stalled, but not stopped completely. AB 1366 can be resurrected next month, or a new bill can be written that would accomplish the same thing. Or maybe come at it from a different direction.

AB 1366 didn’t address broadband service as such. It’s about “Internet protocol enabled” services – anything that rides on top of broadband service – although regulations for a top level service could have implications for the underlying broadband service too. It would have extended an existing ban on IP-enabled service regulations by any state agency or local government. That could mean anything from Facebook to email to Netflix to Google search, which arguably shouldn’t be regulated at the state level. It also means VoIP, which is voice telephone service that runs on top of unregulated broadband service rather than via the old dial up, regulated phone network, AKA “plain old telephone service” (POTS).

A 2019 federal appeals court ruling allowed state-level regulations, although to what extent is still an open question. California already has Internet regulations on the books – a 2018 bill imposed network neutrality rules on ISPs. Enforcement, which is in the hands of the California attorney general, is stalled until federal court challenges are resolved. But the door is now open. Whether, and how, California lawmakers walk through it is top of the broadband policy watch list for the new year.

California net neutrality law stuck in deep freeze as federal appeal drags on

by Steve Blum • , , ,

California’s network neutrality law won’t be enforced for at least a few more months. Last year, California attorney general Xavier Becerra agreed not to enforce the 2018 law enacted by California senate bill 822 while the legality of the Federal Communications Commission’s repeal of net neutrality rules was still being challenged at the federal level. On Friday, the wait got longer as four new petitions asking for rehearings of an October federal court decision were filed with the federal appeals court based in Washington, D.C. – aka the D.C. circuit. Links are below (h/t to Ars Technica for the pointer).

One bit of good news for SB 822 is that it looks like the FCC is sitting out this round. The dust hasn’t completely settled, but it appears that the FCC won’t contest that October decision. The decision generally blessed the rollback of net neutrality rules, but also said the FCC couldn’t preempt state broadband laws with a simple wave of its hand. That left the door wide open for state laws, such as SB 822, which prohibit broadband service providers from blocking, throttling or prioritising particular Internet traffic for their own gain – say, slowing down YouTube while speeding up AT&T Now or Xfinity Stream.

Network neutrality advocates, led by the Mozilla Corporation, filed the original appeal of the FCC’s 2017 net neutrality rollback. The October decision – by a panel of D.C. circuit three judges – rejected most of Mozilla’s arguments. Their decision said, in effect, that the FCC acted within its authority when it repealed net neutrality rules two years ago.

But.

Since the FCC no longer considers broadband to be a telecommunications service, those judges also said it no longer has authority as a telecoms regulator to preempt state net neutrality laws. That was the same rationale offered by supporters of SB 822 as it made its tortuous way through the California legislature.

The next step was to ask the entire membership of the D.C. circuit – at least the 11 active judges – to rehear the case en banc. Friday was the deadline to do so. Mozilla requested an en banc review, as did the California Public Utilities Commission and the County of Santa Clara, along with a second group of net neutrality advocates and the National Hispanic Media. If the D.C. circuit grants that request, we might be looking at another year or more of legal wrangling there. Regardless, any decision or lack thereof can still be appealed to the federal supreme court.

Petitions for Rehearing or Rehearing En Banc of appeal of FCC net neutrality repeal, 13 December 2019
Mozilla, et al
California Public Utilities Commission, et al
Public Knowledge, et al
National Hispanic Media Coalition

Without a broadband cop, big ISPs write their own rules

by Steve Blum • , , ,

Reno 911

Tomorrow is the second anniversary of the Federal Communications Commission’s vote to end network neutrality protections. At the time, lobbyists for monopoly-model incumbents, like Comcast and AT&T, fell all over themselves promising that regulated or not, they would abide by open Internet principles.

That promise wasn’t kept, according to a blog post by Public Knowledge’s Lindsay Stern (h/t to the Baller list for the pointer)…

Researchers from Northeastern University and University of Massachusetts Amherst found that almost all wireless carriers pervasively slow down internet speed for selected video streaming services. From early 2018 to early 2019, AT&T throttled Netflix 70% of the time as well as YouTube 74% of the time, but not Amazon Prime Video. T-Mobile throttled Amazon Prime Video in about 51% of the tests, but did not throttle Skype or Vimeo. While U.S. wireless carriers have long said they may slow video traffic on their networks to avoid congestion, one of the study’s authors, David Choffnes, explained that these carriers are throttling content “all the time, 24/7, and it’s not based on networks being overloaded.” No throttling internet traffic is a core net neutrality principle.

Broadband provider Cox Communications is offering a “fast lane” for gamers who pay $15 more per month.” If net neutrality protections existed, broadband providers cannot set up “fast lanes”—also known as “paid prioritization”—to force users to pay more for prioritized access to the internet.

The FCC’s abandonment its broadband beat also means that there’s no cop dedicated to policing other bad conduct. Stern points to Frontier’s $10 monthly modem fee, which it charges whether or not a subscriber uses its equipment. It’s not the first time Frontier has been called out for arbitrarily tacking fees onto customer bills.

The FCC’s 2017 decision appears likely to stand for the next few years, but it’s not necessarily the last word. The federal appeals court in the District of Columbia upheld it, but also opened the door to state laws, such as we have in California, that would ride right over the top of it.

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.