Tag Archives: public policy

Caltrans floats “Dig Smart” ideas to put more broadband conduit in the ground

by Steve Blum • , , , ,

California’s department of transportation, AKA Caltrans, is a step closer to actively collaborating with broadband service providers and local governments to put more conduit in California’s thousands of miles of state highways and make it available. It published a Dig Smart white paper that summarises “dig once” policies that have already been adopted by cities and other states. Those policies are intended to ease the way for telecoms companies to install conduit when road construction or utility excavation projects happen, and to encourage them to take advantage of the opportunity.

The white paper doesn’t offer any hard recommendations, but it does outline policies “which may be investigated” by Caltrans as it moves ahead with implementing a law – assembly bill 1549 – which was passed four years ago…

  • Resource Sharing
    • State [departments of transportation] make agreements with service providers to exchange the use of right-of-way
      or existing conduit infrastructure for the use of fiber optic services
  • Joint-Trench Agreements
    • Require providers of broadband services and other utilities to install infrastructure at the same time, in the same trench, or in the same conduit, and share the cost of installing the infrastructure
  • Moratorium on excavation to preserve new roadway construction and encourage utility coordination planning
  • Encourage the use of trenchless technologies, such as:
    • Horizontal Directional Drilling: A trenchless method of installing underground pipes,
      conduits and cables along a prescribed bore path by using a surface-launched drilling rig
    • Micro-Trenching: Digging a small trench just inches under the road surface along the
      curb line to install fiber optic lines
  • Information Sharing
    • Provide access to fiber, conduit and projects maps
    • Notify telecommunication companies of projects where broadband infrastructure can be
      installed
  • Reduce permitting costs and wait time for projects which implement coordinated utility planning

If you’re interested in the topic, the white paper provides an interesting overview of dig once programs at the state, local and federal levels. There’s no timeline for adopting a comprehensive dig once, or dig smart, policy, but the agency is moving in that direction. Caltrans is often criticised for being slow to change, but the flip side is that once its gets moving, it moves relentlessly.

I serve on Caltrans’ conduit task force, and I advocated for and helped to draft AB 1549. I’m involved and proud of it. Take it for what it’s worth.

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.

FCC didn’t succeed in blocking San Francisco’s open access broadband law

by Steve Blum • , , , ,

San francisco skyline 625

San Francisco’s open access rules for broadband in multi-tenant buildings is alive and well, according to a local independent Internet service provider. That’s despite the Federal Communications Commission’s determination to preempt the ordinance passed by San Francisco supervisors in 2016. It requires landlords to allow any ISP access to buildings, regardless of whether or not an exclusivity contract is in place.

In an opinion piece published in the San Francisco Examiner, Preston Rhea, the director of engineering for the policy program at broadband provider Monkeybrains, says that tenants and ISPs are still using the ordinance as leverage to pry open building doors…

Monkeybrains’ experience in the months since the FCC’s rulemaking indicates that [the San Francisco broadband access ordinance] is intact and operating as intended. Landlords in San Francisco are opening their doors to competition from alternative ISPs in their buildings, usually without legal proceedings.

Since the FCC’s rulemaking in July, Monkeybrains has used the process defined in [the ordinance] to legally provide notice to landlords with ISP exclusivity agreements that their tenants want Monkeybrains service in the rare case that they do not welcome us through a regular service agreement. The same lawyers who advised the Multifamily Broadband Council to demand the FCC take action against [the ordinance] are now guiding their clients to accommodate our reasonable requests for access to their buildings. Monkeybrains has healthy subscription rates and a productive relationship with building management in these properties.

Broadband exclusivity contracts are controversial. ISPs will pay landlords – sometimes more than $10,000 a year, according to Rhea – to prevent competitors from serving building tenants. Although the technical details of how to make it work are messy, San Francisco’s ordinance essentially says decisions about who to buy broadband service from are in the hands of the end user, not landlords or other middlemen.

The legal fight over the ordinance and the FCC’s attempt to, at least, partially preempt it continues. The City and County of San Francisco is appealing to the federal ninth circuit appellate court, which is a process that can take years to resolve.

FCC asks for limited net neutrality comments, but Rosenworcel says “make noise”

by Steve Blum • , , , ,

The Federal Communications Commission will tweak its network neutrality rules, such as they are, to answer objections made by the federal appeals court based in Washington, D.C. last year. That court – aka the D.C. circuit – largely upheld the FCC’s 2017 repeal of network neutrality rules, but sent a few bits back to the agency for more work and threw out a blanket preemption of state and local regulations.

In a notice issued earlier this week, the FCC asked for comments on the public safety, lifeline and pole attachment issues flagged by the D.C. circuit. The FCC has to figure out how to square its declaration that broadband isn’t a telecommunications service with its utility pole regulations that, seemingly, limit attachment privileges to telecoms companies. It’s looking for public comment on, among other things, whether “broadband-only providers” will still have “access to poles”.

Limited or not, commissioner Jessica Rosenworcel, a democrat, said network neutrality advocates should respond to the FCC’s request for comments

Today, the FCC is seeking comment on how best to move forward. My advice? The American public should raise their voices and let Washington know how important an open internet is for every piece of our civic and commercial lives. The agency wrongfully gave broadband providers the power to block websites, throttle services, and censor online content. The fight for an open internet is not over. It’s time to make noise.”

The FCC’s authority over utility pole attachments doesn’t extend to California, or to other states that have established their own regulations. The California Public Utilities Commission will have to sort those issues out here.

California also has its own network neutrality rules. Those are on hold until all the federal court challenges are settled. It’s a done deal at the appellate level, but the organisations that challenged the FCC’s net neutrality repeal can make a final appeal to the federal supreme court. The deadline for doing that is still several weeks away.

Broadband bill targets California fairgrounds, details yet to come

by Steve Blum • , , , ,

Bolado park san benito county 13apr2019

A bill aimed at upgrading broadband service at fairgrounds in California was introduced in the assembly by assembly Robert Rivas (D – San Benito). Assembly bill 2163 would “ensure that all California fairgrounds are equipped with adequate broadband and telecommunications infrastructure to support local, regional, and state emergency and disaster response personnel and operations”.

In its initial form, AB 2163 doesn’t answer the key question: where does the money come from? Earlier conversations about improving broadband facilities at fairgrounds opened up the possibility of raiding the California Advanced Services Fund (CASF) for that purpose, but the draft doesn’t mention that. CASF is California’s primary broadband infrastructure subsidy program. The last time legislators took it up, they turned CASF into a piggybank for monopoly-model incumbent service providers, like AT&T, Frontier Communications and cable companies.

The bill does open the door a crack to general broadband infrastructure improvements, but just a crack. It calls for “fostering new economic opportunities in neighboring communities”, which might mean better public-facing broadband infrastructure. Or it could mean better online livestock auctions at county fairs. We’ll see.

At this point, AB 2163 is a statement of intent rather than fully fleshed out legislation. That’s common practice this early in the session. More meat will probably be added to the bill once it makes it to its first committee hearing, probably toward the end of March. That’s when we’ll have a better idea if it’s intended to make meaningful upgrades to the woefully slow broadband infrastructure that’s common in rural California, or if it’s just a way to add money to the internal information technology budgets for the California office of emergency services and/or the department of food and agriculture.

An early clue will be which committee (or committees) are assigned to review it. A proposal to dip into CASF or to do much of anything that’s related to telecoms infrastructure would have to go to the industry-friendly assembly communications and conveyances committee. If it’s just about departmental IT budgets, then it might be run through the public safety and/or agriculture committees. So far, that assignment hasn’t been made, and doesn’t need to be for a few weeks yet.

As you might guess from reading this post, let alone this blog, I have opinions about how to improve broadband infrastructure in rural California, which I’ve shared publicly and privately. I’m not a disinterested commentator. Take it for what it’s worth.

FCC’s $270 pole rental limit for wireless attachments might be “arbitrary and capricious”, appellate judge says

by Steve Blum • , , , ,

Los angeles streetlight cell 1 23oct2019

Federal appeals court judges hearing the challenge brought by local governments to the Federal Communications Commission’s 2018 preemption of ownership and control of street lights tried to get an FCC lawyer to explain how the commission settled on $270 as the allowable annual pole rental limit. The attorney, Scott Noveck, couldn’t oblige judges Jay Bybee and Mary Schroeder…

Bybee: I’d still like you to get to how you get to the $270.

Novek: So your honor, what I believe happened is that the commission took a look at various state small cell bills…

Bybee: It’s interesting, counsel, that you just characterised it as ‘you believe’. Because there isn’t anything in the record that tells us what the commission did, other than look at bills that were pending in a number of states, mostly in the heartland, not on the coast.

Novek: I want to try to answer that, but I just want to say to preface that, that this is just a safe harbor. And this order would have been perfectly reasonable even without any safe harbor at all.

Schroeder: When you say safe harbor, what do you mean? Do you mean that if it’s below that there’s no problem with it?

Novek: So, what I think what the commission was doing here was recognising that there exists a certain level of fees below which the fees are so likely to pass muster, they’re so likely to be within what the actual costs are, that it wouldn’t make sense to be expending resources on litigating those…But nothing at all precludes localities from charging higher fees where their costs are higher.

Bybee: Does the commission have an obligation to explain why it chose $270 as opposed to, let’s say, $250 or $300?

Novek: Well, I do think that at that point you’re in the area of paradigmatic line drawing, where agencies, I think, are at their greatest deference.

Bybee: They could have chosen $200 or $400 – that’s significant, isn’t it?

Novek: Your honor, I don’t think that this was, um, something that we were able to calculate with mathematical precision…

Bybee: You can calculate it with mathematical approximation. I don’t even see the approximation.

Novek: So, what the commission did here…

Bybee: The numbers that are in the bills that the commission relied on…are in the range of about $100. So the $270 appears – I mean, it may be generous for the cities, and maybe it was out of an abundance of caution. I’m just trying to figure out whether they just drew a number out of a hat, which might make it arbitrary and capricious.

The $270 figure originally came from lobbyists for mobile carriers, such as AT&T, Verizon, T-Mobile and Sprint. In 2017, they convinced California lawmakers – whom they and their colleagues influence with millions of dollars in payments – to enact a similar limit, which was vetoed by governor Jerry Brown.

The challenge to the FCC’s 2018 preemption is now in the hands of the three judges from the federal ninth appellate circuit, who heard the case last week in Pasadena. Their decision is likely to come sometime in the next three to six months.

Links to petitions, court documents and background material are here.

FCC’s rural 5G justification for urban wireless preemption is comfort to AT&T but not to Fresno, appeals court told

by Steve Blum • , , , ,

Ninth circuit oral argument pole preemption 10feb2020

Federal appellate judges drilled down into arguments made by local governments and the Federal Communications Commission on Monday, as they considered a challenge to the FCC’s 2018 decision to cap rental rates for locally owned street light poles and other assets in the public right of way, and effectively give mobile carriers unfettered use of public property.

One justification for this preemption of local property ownership was that if big cities with big potential for subscriber revenue charge high fees, then carriers like AT&T and Verizon won’t have money left over to spend in less profitable small cities and rural communities. That prompted a question from judge Jay Bybee about whose rights and whose benefits are being protected…

So the FCC’s theory is that the reason we’re not going to allow costs above a certain level – anything above costs – is prohibited and preempted is because, the theory is, that the carriers could then take that money and invest in rural areas, other cities and so forth.

So if the City of Los Angeles agrees to $400 – the city says it’s $400, it’s our cost – and the carriers all agree, because they’re very anxious to get into Los Angeles immediately, and the City of Fresno comes and says ‘we don’t think it’s above $300’, does the City of Fresno have the right to bring an action, because these carriers are being slow to develop 5G in Fresno?

Joseph Van Eaton, with the Best, Best and Krieger law firm, which represents many cities in California and elsewhere, replied…

No, in fact that’s one of the flaws, the basic flaw in this whole cross subsidy argument, because that’s what this really is, that carriers will take money saved in Los Angeles and invest it in an area that’s not now profitable.

There’s no economic theory that supports that idea. The whole universal service fund is based on the idea that a rational investor will make money where they can make money and then they don’t take good money and pour it into an area where it’s not profitable out of the goodness of their hearts. That’s why we actually have evidence where Lincoln, Nebraska dropped the fee to $95 and said ‘all you have to do is build out these less profitable areas’ and they got no takers.

There’s no evidence that cross subsidy actually results in the impacts, effects the FCC has, and certainly the FCC doesn’t require it, and it doesn’t give anyone any enforceable right to say ’if you’re saving money in LA, you gotta come to our community".

All three judges asked questions of both the FCC and local government challengers during the hearing in Pasadena. Conventional wisdom is that questions asked aren’t a good guide to what judges are thinking – they might be sceptical, or they might be floating conclusions that they’re leaning towards. We’ll have to wait for them to issue their ruling, which is probably three to six months away.

Links to petitions, court documents and background material are here.

FCC tells appeals court if electric or cable companies can install “larger, uglier, blighted” equipment on poles, then wireless carriers can too

by Steve Blum • , , , ,

Small cell olympic blvd 22oct2019

The Federal Communications Commission defended its 2018 preemption of local property ownership and permitting authority in front of a panel of three federal appeals court judges in Pasadena yesterday. Its lawyers faced some pointed questions from the judges.

FCC attorney Scott Noveck tried to dance around the reality of the FCC’s preemption order and claim that it really wasn’t doing much at all, particularly in regards to limits on the aesthetic requirements that cities can impose on wireless facilities. Judge Daniel Bress didn’t seem convinced…

Bress: The other side has raised this point, that when you just compare the standards – the one in the small cell order as compared to the one in the statute – there’s some possible misalignment, right, where it says no more burdensome, which would suggest parity, whereas the statute suggests actually there’s some amount of discrimination that would be allowed?"

Noveck: I think the order suggests parity among similarly situated infrastructure, which I think brings those into alignment.

Bress: What does that mean?

Noveck: Well, so for instance, the problem we have here sometimes, you have times when you have, say, cable equipment or electrical equipment, and what the record shows is that in many localities they were imposing very burdensome requirements on wireless equipment that might be smaller and less, um, more unobtrusive than similar equipment you might see on a utility pole or on a pole that was being used to provide cable service, was being used to provide electrical service but, for whatever reasons, localities were subjecting the wireless carriers to far more onerous requirements. So the non-discrimination principle here is just saying that if you are claiming that small cells need to meet some burdensome aesthetic requirements, but you’re allowing other utilities to put larger, uglier, blighted infrastructure on the same poles, it’s hard to think that this is a legitimate aesthetic requirement you’re imposing.

Noveck was trying to create a false equivalence between electrical equipment, such as transformers, that are installed on utility poles, which are often placed as far out of view as practicable, and wireless equipment placed on street light poles which, by their very nature, are placed where everyone can see them. Bress didn’t seem convinced, but that’s not necessarily his thinking – appeals court judges are notoriously (and properly) hard to read. All we can do now is wait for a ruling. There’s no particular timeline for that, but three to six months is typical.

Links to petitions, court documents and background material are here.

Game on today, as cities take on FCC in court over pole ownership preemption

by Steve Blum • , , , ,

Downtown salinas

Local ownership of street light poles and other facilities planted in the public right of way is at stake, as lawyers for dozens of cities and counties and the Federal Communications Commission square off in a Pasadena court room later this morning.

A panel of three federal appellate court judges will hear arguments about why, or why not, the FCC has the authority to tell local agencies how much they can charge mobile carriers to attach equipment to their poles, and to largely replace negotiated rental contracts with simple, non-discretionary permits. Other issues, such as access to utility poles (which fall under different laws and regulations) and road maintenance policies that prohibit digging when the danger of freeze/thaw damage is greatest, will also be taken up.

In 2018, the FCC capped the rental rate that cities can charge wireless companies for pole attachments at $270 per year. That’s in contrast to negotiated market rate deals that often top $1,000 per year and sometimes go much higher.

If they prevail, the FCC’s republican majority is ready to double down on preemptions of state and local authority over right of way management and permits for wireless facilities. At the CES show in Las Vegas last month, republican commissioner Michael O’Rielly was defiant. He said local control is “problematic” and the FCC’s response “does come with the P-word…it requires preemption. And that is something the commission is going to have to continue to do”.

Another federal appeals court, based in Washington, D.C., might have made O’Rielly’s dream less likely. In a decision that otherwise upheld the FCC’s repeal of network neutrality rules, the judges ruled that the commission overstepped its authority when it tried to preempt any and all regulation of broadband service by states. If the FCC wants to big foot state governments, it has to wait until there’s an actual regulation to preempt, and then come up with a specific basis for doing it.

SB 917 is a plausible PG&E public buyout plan, if the public wants to pay the price

by Steve Blum • , ,

A credible PG&E public takeover plan is on the table in the California legislature. Senator Scott Wiener (D – San Francisco) introduced senate bill 917 on Monday. It’s a detailed guide to acquiring PG&E’s electric and gas business, including financing and operating plans and responsibilities.

Wiener wants to create a massive utility district that encompasses all of PG&E’s vast northern California territory. It would own most or all PG&E’s infrastructure and business, after it’s been acquired via an eminent domain process – the state would use its sovereign authority to take over ownership, with the compensation paid to the company likely determined by a court. I haven’t seen any estimates of how much that would be, but when San Francisco proposed a similar takeover last year. It initially ballparked the cost at “a few billion” just for the assets and operations within the City, and ended up offering $2.5 billion, which PG&E rejected as inadequate.

Top management would work for the new Northern California Energy Utility District, but nearly all the work of running the utility would fall to a non-profit operating company. Executives aside, PG&E’s employees would end up working for the operating company.

Both the district and the operating company would be run by boards elected via a popular vote, in the same way as other Californian special districts, for example the Sacramento Municipal Utility District, which provides electric service in Sacramento County.

The most or all caveat is there because the bill also gives cities, counties and local utility districts a de facto right of first refusal. San Francisco, say, can jump in on the eminent domain proceeding and slice off PG&E assets, customers and employees within its boundaries if it “contributes its proportionate share of the compensation paid for the assets”, according to the summary of the bill prepared by the legislature’s non-partisan attorneys. Slicing off customer and cash dense urban territory could be problematic if the mega-district is left with mostly rural communities.

No surprise: PG&E doesn’t like SB 917. It released a statement saying the company opposes the bill and a public takeover “would not create a safer or cleaner operation”.

The bill promises just that, though. It includes a long list of directives, including twice a year inspections, minimising the scale of preemptive power cuts and reducing greenhouse gas emissions. Which is possible, but at a price. Similar to other local governmental agencies, the new northern California utility mega-district would have a limited ability to impose taxes, including particularly to pay back the money taxpayers would have to borrow to foot the bill for taking over PG&E.