Tag Archives: netneutrality

Prosecutors in, CPUC out as California’s net neutrality enforcer

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Democrats and republicans in Sacramento agree on at least two things: network neutrality rules are good and the job of enforcing them shouldn’t go to the California Public Utilities Commission. The California senate’s appropriations committee gave senate bill 460 a green light, and sent it on for a formal floor vote yesterday, after wrangling a promise of significant changes.

Senator Kevin de Leon (D – Los Angeles) authored SB 460. As originally written, it would have revived net neutrality rules that the Federal Communications Commission scrapped last month. Committee democrats liked that, republicans didn’t. But lawmakers from both sides of the aisle objected to making the CPUC California’s broadband cop. The appropriations committee chair, senator Ricardo Lara (D – Bell Gardens) opened discussion of SB 460 yesterday by announcing that de Leon agreed to change tack…

The author has committed to…amending the bill prior to a vote on the senate floor to address those concerns by striking out the CPUC as the oversight agency and instead designating the [California attorney general], the DAs – the district attorneys – and the city attorneys as enforcement entities.

Lara also said that de Leon would add language requiring state agencies to buy Internet service from providers that follow net neutrality principles, a feature of a parallel bill, SB 822, by senator Scott Wiener (D – San Francisco), and something that has a far better chance of surviving a federal court challenge.

Republicans seem to be warming to the idea. Senator Patricia Bates (R-Laguna Niguel) endorsed the decision to put enforcement duties in the hands of state and local prosecutors – who already have consumer protection responsibilities – then went on to say she’s “working very hard to ensure net neutrality is there, but not through a regulatory structure that creates a patchwork that we would have to deal with as we travel to other states”. Bates didn’t mention how she intended to do it, though.

The state senate either has to vote on SB 460 before the end of the month, or it automatically dies. Even if it does, SB 822 will continue chugging along – it’s a brand new bill with different, more generous deadlines.

California senate leadership will decide if net neutrality goes to a vote

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A bill to reinstate network neutrality rules in California is in legislative limbo. The senate appropriations committee put senate bill 460 into the suspense file, where it’ll sit until the end of the week. At that point the committee, in consultation with senate leadership, will decide whether it will move on to a floor vote.

Opinions split along party lines on the Federal Communications Commission’s decision to roll back broadband’s status as a common carrier service, and in the process eliminate rules that banned paid prioritisation, throttling and blocking of Internet traffic. Republicans thought the federal government is doing a fine job with telecoms policy, while democrats begged to differ. But there was bipartisan agreement on one point – if the state does decide to try to regulate broadband service, the job should not go to the California Public Utilities Commission.

“Historically, we have the problem of overplacement of responsibility at the PUC”, said senator Jerry Hill (D – San Bruno). “Wherever this goes, the PUC is not the correct place”.

“It’s almost a blank check to the PUC…to fix a problem that doesn’t exist”, said senator Jim Nielsen (R – Tehama). It’s likely to be a substantial check – a preliminary estimate by the CPUC and the governor’s finance office puts the annual administrative tab at more than $1 million per year over the next five years.

That’s money that would have to be spent until – as is all but certain – a federal court eventually tosses out SB 460.

Because SB 460 was originally introduced as a broadband subsidy bill last year, then gutted and completely rewritten as a net neutrality bill this year, the appropriations committee has to approve it by the end of the week and the full senate has to act on it by the end of the month. Otherwise, it’ll die a quiet death.

There is another net neutrality bill in the hopper, though, one that was introduced this year and has a longer shelf life. SB 822, by senator Scott Weiner (D – San Francisco), is more artfully – if still vaguely – crafted to survive legal challenges, although to what, if any, extent that’s even possible is debatable. Nevertheless, Weiner, who also thinks the CPUC is the wrong agency for the job, said during the hearing yesterday that he’s talking with SB 460’s author – senate president pro tem Kevin de Leon (D – Los Angeles) – and “we want to work together collaboratively”.

Governors agree scrapping net neutrality was wrong, but differ on role of states

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The end of network neutrality and broadband’s status as a common carrier service doesn’t sit well with a pair of western governors. Speaking during the National Governors Association summit held alongside CES in Las Vegas last week, Nevada governor Brian Sandoval and Montana governor Steve Bullock both thought it was a bad decision by the Federal Communications Commission, but had different views on whether net neutrality is something that can be addressed at the state level.

“I’m concerned about the decision. I don’t support the decision but the exclusive regulation of that issue is within the FCC”, said Sandoval, republican. "The danger, in my mind, is having 50 different sets of rules and regulations associated with that, particularly with something as ubiquitous as the Internet.

“It took us all a little by surprise, that we would repeal something that seemed to be working pretty darn well”, said Bullock, a democrat. “If congress doesn’t act, we’ll see if there’s something states can do”.

Sandoval chairs the association and brought it to Las Vegas for the first time. Proximity didn’t seem to be a selling point for California governor Jerry Brown, who skipped the conference. The hot topic was technology and transportation. “We had 26 states with us this week, and the focus was on transportation, particularly autonomous vehicles”, Sandoval said. He sees self driving car policy as a responsibility that states share with the federal government, and coordination is necessary.

Bullock agreed. “We need to help provide an environment and a regulatory framework that supports innovation”, he said. “I don’t think it’s government’s role to prop up businesses that can’t compete, but where we can facilitate the opportunities for technologies…most governor work in concert with private companies”.

Energy innovation and infrastructure was also high on their list.

“None of these developments can happen without equal advancements in energy”, Sandoval said. “While states are driving innovation, the burden of modernising and maintaining the nation’s transportation and energy network is a shared obligation. State, federal and local governments must partner to invest in quality infrastructure and meet our nation’s needs”.

It’s a pressing problem, Bullock said. “One of the most antiquated technologies in the western United States is the electric grid”.

Futile or not, California senate committee approves net neutrality bill

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Network neutrality rules were endorsed by the California senate’s energy, utilities and communications committee last week. On a 7 to 2 party line vote – democrats aye, republicans nay –the committee approved senate bill 460, by senator Kevin de Leon (D – Los Angeles). It would reinstate the net neutrality requirements that the Federal Communications Commission repealed last month.

The bill is supported by consumer advocacy groups, and opposed by telecoms companies, including AT&T, Frontier Communications and Comcast’s and Charter’s lobbying front, the California Cable and Telecommunications Association (although someone needs to check in with Comcast – it has not ruled out paid prioritisation, as CCTA’s chief lobbyist, Carolyn McIntyre, testified).

On the face of it, SB 460 has no practical effect so long as the FCC decision, which explicitly preempts state-level net neutrality rules, stands. As the committee’s staff analysis delicately noted…

Under the Order that was just issued, the FCC states they “preempt any state or local measures that would effectively impose rules or requirements that we have repealed or decided to refrain from imposing in this order.” As such, the success of implementing this bill is largely hinged on the new order being repealed or rejected, in whole or in part. Considering the high likelihood that the courts will be asked to weigh in, it seems within the realm of possibilities that the new order may not withstand a court challenge.

But if the FCC’s decision is tossed out in court, the federal net neutrality rules snap back into place. So there’s not much practical value to de Leon’s bill, except that it gets him noticed by voters who care about such things, without greatly upsetting the big money donors who oppose it. De Leon needs a lot of name recognition and cash – he’s running for the U.S. senate against Dianne Feinstein, who has plenty of both.

Among those voting yes was senator Scott Weiner (D – San Francisco), who has introduced net neutrality bill with a somewhat different approach. Weiner was glad that de Leon was also pushing for net neutrality, but he had concerns about whether SB 460 would withstand court challenges. He – and most of the other committee members – also expressed misgivings about making the California Public Utilities Commission the state’s Internet cop.

The next stop for the bill is the senate’s appropriations committee, which is scheduled to consider it tomorrow.

New broadband top cop talks and walks a narrow beat

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Death threats kept Federal Communications Commission chair Ajit Pai away from CES, but the acting chair of the Federal Trade Commission, Maureen Ohlhausen, sat down for an interview on Tuesday with Consumer Technology Association CEO Gary Shapiro. Her agency is responsible for broadband consumer protection enforcement, after the FCC bucked the job over last month. Appropriately, Shapiro opened with a couple of questions about network neutrality.

Ohlhausen said her concern is transparency – service can be pretty much anything so long as terms are disclosed – and the FTC will look at one basic question: whether consumers get what they’re promised. She made vague references to anti-trust laws and the FTC’s reacquired authority over telecoms companies, now that broadband is no longer reckoned to be a common carrier service (although she neglected to mention that her new found authority is under challenge in court). Ohlhausen’s expertise and jurisdiction are clearly not broadband-specific.

Nevertheless, Shapiro tried to draw Ohlhausen out on broadband issues, noting there are “a hundred different telecommunications companies in Europe” that offer lower priced broadband at a variety of speeds, while the U.S. telecoms market is dominated by four players. Ohlhausen said mobile carriers would provide competition in the future, pointing out that they’re now delivering broadband at speeds that consumers would have considered to be adequate a few years ago.

True. But expectations are higher now and will continue to rise. The 5G networks that Ohlhausen is banking on may deliver speeds that consumers likewise consider adequate today. But those upgrades are many years away for most U.S. residents, and their expectations and their bandwidth consumption will continue to rise. Ohlhausen also forgot to mention that the two biggest mobile companies – AT&T and Verizon – belong to Shapiro’s gang of four.

When the FCC and FTC reached a working agreement on how to divvy up broadband responsibilities, Pai called the FTC “our nation’s premier consumer protection cop”. Perhaps. But Ohlhausen shows little enthusiasm for the job.

FCC swings a policy sledgehammer at local governments in 2018

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They might have ducked substantive statements about network neutrality, but two members of the Federal Communications Commission had a lot to say yesterday about local governments. Commissioners Michael O’Rielly and Mignon Clyburn clashed during an FCC panel discussion at CES, which also included their colleague, Brendan Carr. O’Rielly and Carr are two-thirds of the republican majority on the commission; Clyburn is a democrat.

When asked about what plans he has for 2018, particularly regarding removing barriers to broadband deployment, O’Rielly pointed directly at local governments. While some cities are doing a good job managing permit processes and access to infrastructure, “there are many bad actors out there that see it as an opportunity for revenue gathering or power struggle”, he said. “I’m willing to use my authority to push those bad actors out of the way”.

That’s the wrong approach, Clyburn argued. “Not all communities are created equal”, she said. The FCC should “not take a sledgehammer when only a scalpel is needed”.

“We’ve tried the scalpels, we’ve tried the different approaches”, O’Rielly replied. “Now we have communities that are trying to extract dollars that they don’t deserve”.

O’Rielly said he’s waiting for the FCC’s lobbyist-laden broadband deployment advisory committee (BDAC) to come back with final policy recommendations later this month. He’s sure to be happy. BDAC’s draft proposals, released in November, are exactly the kind of sledgehammer O’Rielly seems to want: federal preemption of state and local permit processes for wireless sites and other broadband infrastructure, preemption of local ownership and oversight of poles and other wireless assets, statewide cable franchising and, for good measure, a de facto ban on muni broadband systems.

The panel session, moderated by Julie Kearney, a top lobbyist with the Consumer Technology Association, opened with an obligatory question about net neutrality and the commission’s decision to scrap common carrier status for broadband service. Aside from a couple of zingers – Clyburn called it “the destroying Internet freedom order”, while Carr blasted those who “are flaming the false flames of fear” – the conversation was about the process ahead and the occasionally collegial and occasionally not relationships between commissioners.

Final version of FCC’s net neutrality and common carrier repeal posted

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Click here for the final version of what the Federal Communications Commission calls In the Matter of Restoring Internet Freedom; Declaratory Ruling, Report and Order, and Order.

I’m still slogging through the text, trying to figure out if there’s anything significantly different from November’s draft version. Absent changes, the real significance is that the clock is now ticking for some of the administrative and legislative actions that might be taken. Others, particularly court challenges, will have to wait until it’s formally published in the Federal Register.

Another net neutrality bill hits Sacramento with wishful thinking, better focus

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A second net neutrality resurrection bill is on the table in the California legislature, introduced by senator Scott Weiner (D – San Francisco). Senate bill 822 is more targeted than the high visibility, low probability shotgun approach taken by senate president pro tem Kevin de Leon (D – Los Angeles) in senate bill 460. But it still has serious, likely fatal, problems.

Weiner’s bill is also vague. It’s a checklist of goals, rather than specific legal language that would accomplish anything. But that can come later. SB 822 identifies four broadband-specific areas of the law that are arguably under California’s jurisdiction. It would:

  • Require broadband providers to abide by net neutrality rules if they want to sell services to state agencies and, I’m assuming, local governments.
  • Use consumer protection laws to encourage – force? – broadband companies to follow net neutrality principles.
  • Obligate cable companies to adopt net neutrality practices and promote “the availability of municipal broadband”.
  • Link permits and pole attachment rights for small cells and other wireless broadband facilities to “adherence to net neutrality”.

Those areas of the law are only arguably under state control. If passed, all would be instantly challenged in court. Inserting net neutrality-specific provisions into consumer, cable franchise, and wireless permit and pole attachment laws is a lost cause, although a requirement that state and local government buy broadband service only from net neutral providers could survive. The Federal Communications Commission’s draft order repealing net neutrality generally preempts state laws that address it (the final, approved version hasn’t been published yet), and its existing rules governing wireless permits and cable franchises would similarly apply, or be quickly amended to do so.

Then there’s the political side of it. Lobbyists, particularly from cable and wireless companies, will go nuts. They’ll swarm lawmakers, waving threats of political retaliation in one hand and generous cash payments in the other.

Guess which hand wins?

Update: the final version of the FCC’s decision repealing net neutrality and rolling back common carrier status for broadband service has been posted. Click here.

Net neutrality bill lands in the California senate with dim hopes

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A doomed attempt to impose network neutrality rules scrapped by the Federal Communications Commission is underway in Sacramento. California senate president pro tem Kevin de León (D – Los Angeles) gutted senate bill 460, a leftover broadband bill from last year, and replaced it with language that would reinstate the three “bright line rules” – no blocking, throttling or paid prioritisation – adopted by the democratic majority FCC in 2015 and repealed by the republican majority FCC last month.

The attempt is doomed because even if it’s passed by the legislature and signed into law by governor Jerry Brown, it’ll be thrown out in court when it’s challenged, as it would be, by the telecoms industry. There are two problems with it. The FCC explicitly preempted any state level action that would go against last month’s decision and even if it hadn’t, it blew away the legal basis for net neutrality rules – state or federal – when it declared that broadband is not a common carrier service.

More plausibly, the bill calls for state money, for things such as broadband service contracts, California Advanced Services Fund subsidies and lifeline programs, to be spent in a way that requires compliance with net neutrality principles. The California Public Utilities Commission would also have to establish a broadband consumer protection program, including speed tests to verify advertised speeds.

Then there’s that if. So far in this session, which began last year, feel good broadband bills have been introduced, log rolled along with much self congratulations and then quietly killed or amended beyond recognition while attention was elsewhere. What matters is what the legislature eventually passes, if it passes anything at all, and not what’s simply introduced.

Because it’s technically unfinished business from last year, there’s a short timeline for dealing with it. SB 460 has to make it out of the committee process and onto the senate floor in the next two weeks.

Will the FCC be as shocked by Comcast’s consumer deception as Washington’s AG?

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Comcast is even more dishonest that previously suspected, Washington’s attorney general told a Seattle court earlier this month. Bob Ferguson is suing Comcast over its habit of cramming service contracts, that don’t necessarily offer much service, onto monthly cable bills.

You can read the latest filing here. Ferguson’s office summed it up in a press release

A sample of recorded calls between [service protection plan (SPP)] subscribers and Comcast representatives obtained by the Attorney General’s Office reveal that Comcast may have signed up more than half of all SPP subscribers without their consent. Comcast deceived consumers even when mentioning the SPP, telling them the SPP plan was “free” when they signed up, when in fact, Comcast would automatically charge them every month after the first month.

“This new evidence makes clear that Comcast’s conduct is even more egregious than we first realized,” Ferguson said. “The extent of their deception is shocking, and I will hold them accountable for their treatment of Washington consumers"…

Even when Comcast actually mentioned the SPP on the sales call before signing consumers up for the SPP, Comcast continued to engage in deception. Comcast deceptively failed to disclose the SPP was a monthly recurring charge to 20 percent of the Washingtonians in the sample. Rather, Comcast often told subscribers the SPP was added for “free” to their account.

The core issue is whether a cable company, or any other telecoms service provider, can aggressively up sell customers into vaguely described packages, and then hide behind the fine print on later bills or posted on a website. It’s a particularly important question because full disclosure is the sole, broadband-specific consumer protection allowed by the Federal Communications Commission after its vote to repeal network neutrality and other common carrier rules.

The FCC’s current industry-friendly posture is not reassuring in that regard. It’s hung on to the role of consumer disclosure cop, but its recent track record doesn’t offer much reason to think it will be as tough on broadband providers as some state attorneys general. How those duties will be split between the FCC and state enforcers has yet to be determined.