Tag Archives: public policy

FCC’s have it both ways brief is California’s heads we win, tails you lose hope

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Besides doing rhetorical back flips to explain why broadband isn’t a telecommunications service, the Federal Communications Commission’s defence of its decision to scrap network neutrality rules also goes to great lengths to justify its declaration that states cannot impose their own laws as a substitute. This specific preemption, along with federal law and the general constitutional principle that the federal government has sole authority over interstate commerce, forms the basis for the court challenge to California’s net neutrality law mounted by lobbyists for AT&T, Charter, Comcast, Frontier and other monopoly model telecoms companies, and the allied law suit filed by the Trump administration.

In doing so, the FCC relies heavily on a recent ruling by a federal appeals court in Minnesota that barred that state from regulating what it defined as an “information service” – VoIP – provided by Charter Communications. Neither the District of Columbia appeals court hearing the challenge to the FCC decision or the one in California are obligated to follow the Minnesota court’s ruling.

But if they do, then they should also give equal weight to its assumption that the Internet access Charter provides is an underlying “telecommunications service”.

Although federal courts generally leave technical determinations up to administrative agencies such as the FCC, there’s a point where contradictory decisions – between courts and agencies, and within agencies themselves – have to be resolved. In this case, the FCC is trying to have it both ways, by declaring that broadband service itself is an unregulatable information service, then turning around and basing its supposed preemption of state laws regarding on its authority over communications services.

Some of the services ISPs provide are information services: video, productivity apps and, perhaps, VoIP. Basic Internet access, though – the transmission service they all ride on – is a telecommunications service. The FCC might have sufficient authority and evidence to say it isn’t for the purpose of defining its role and the reach of federal telecoms law – that’s the key question in front of the D.C. court.

If the D.C. court rejects the FCC’s reasoning and throws out the 2017 decision, federal net neutrality rules are back in effect. But if it agrees with the FCC, then the foundation of the case against California’s net neutrality law crumbles, and California has a fighting chance of keeping the Internet open.

FCC’s definition of information is a bad 1990s nostalgia trip

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The Federal Communications Commission is strenuously and – I’d say – unconvincingly arguing that broadband is an information service and not a telecommunications service, as it defends last year’s decision to roll back network neutrality rules. In a brief filed with a Washington, D.C. appeals court, the FCC defended both the logic of its decision and the way it arrived at it.

Courts have already told the FCC that it needs to define broadband as a telecoms services before it can impose common carrier obligations on providers, which, for all practical purposes is what network neutrality rules do.

The FCC’s defence of its conduct relies primarily on older rules, and even older studies, that prevailed before the Obama administration’s commission, with its democratic majority, changed course in 2015 and declared broadband is a common carrier, telecommunications service.

When the Trump administration’s republican led FCC reversed that decision last year, broadband went back to being a largely unregulated information service. It’s accused now of acting quickly without giving the decision as much consideration as the law requires. Its frontline defence amounts to the other guys were arbitrary and capricious, we’re just putting it back to what it was for 20 years.

In the mid–1990s, platforms like AOL offered generic internet access, but it was an add-on to the main business of providing a walled garden line up of data, services and fora. That’s not what broadband providers do now, though. Most Internet traffic is a simple transmission link, between a user and third party service or content platform. So the FCC brief tries to concoct a new definition that fits that model…

A service that offers a capability to generate and process information is an information service, but a service, like broadband, that offers a capability to acquire, retrieve, and utilize information is also an information service.

The problem with the FCC’s argument is that its new definition of information looks a lot like the legal definition of telecommunications…

The term “telecommunications” means the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.

It’s not 1995 anymore. This attempt to redefine information is blatant fantasy. The question will be whether the court will abandon the usual deference it shows to the supposed technical and subject matter expertise of federal regulatory agencies and come down on the side of reality.

Telecoms, data center infrastructure infiltrated, Bloomberg stories say, mystery deepens despite denials

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Taken at face value, a pair of articles on Bloomberg by Jordan Robertson and Michael Riley details how Chinese government intelligence agencies snuck tiny chips into computer servers used by Amazon and Apple, and by at least one major U.S. telecoms company. The devices – as small as the tip of a pencil – could be used to listen to communications going in and out, or to dive deeper into those systems.

If true, Bloomberg’s reporting means that the Chinese government, and possibly other intelligence agencies and criminal groups, have a backdoor that leads deep into U.S. telecoms and data processing infrastructure. It is flatly denied by some U.S. government security officials, by Apple and Amazon, and, according to a story by Jason Koebler, Joseph Cox, and Lorenzo Franceschi-Bicchierai on Motherboard, by most major U.S. telecoms companies…

Motherboard has reached out to 10 major US telecom providers, and the four biggest telecoms in the US have denied to Motherboard that they were attacked: In an email, T-Mobile denied being the one mentioned in the Bloomberg story. Sprint said in an email that the company does not use SuperMicro equipment, and an AT&T spokesperson said in an email that “these devices are not a part of our network, and we are not affected.” A Verizon spokesperson said: “Verizon’s network is not affected.”

A CenturyLink spokesperson also denied that the company is the subject of Bloomberg’s new story. A Cox Communications spokesperson said in an email: ”The telecom company referenced in the story is NOT us." Comcast also said it’s not the company in the Bloomberg story.

Charter Communications and Frontier Communications, two of California’s biggest telecoms companies, aren’t on the not me list, but that might be the result of poor response by their press relations people or, less likely, because they weren’t contacted by Motherboard.

Although Bloomberg’s stories have been refuted by U.K. intelligence agencies, their U.S. counterparts have been silent, as is common practice. Which leaves the door open to uncomfortable speculation: they could have discovered the backdoors and be taking advantage of them too. And if they can, so can other national governments and criminal organisations. Unfortunately, U.S. government spy agencies put a higher priority on their own access to cracked systems, than on defending public cyberspace.

Until this mystery is solved, we’ll have to cope with the possibility that our data centers and telecoms networks are hopelessly compromised.

Motions to block California’s net neutrality law to be heard end of November

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The federal justice department will work side by side with telecom industry lobbyists to block California’s new network neutrality law. The two challenges to senate bill 822, filed shortly after it was signed into law by California governor Jerry Brown, will be taken up as a package by a federal judge in Sacramento. For now, the two cases will be technically separate, but will be argued and decided together.

Judge John Mendez set a hearing for 28 November 2018 to decide if he’ll issue a preliminary injunction that would prevent SB 822 from taking effect in January. AT&T, Charter Communications, Comcast and Frontier Communications, among others, claim they “will suffer immediate and irreparable harm” if it’s enforced before the core issues are argued and, eventually decided, next year.

In theory, it shouldn’t have much effect, if any, on California’s monopoly wireline broadband providers – they claimed to be honoring net neutrality principles during their full throated – deep pocketedattacks on SB 822. The reality is likely different. The ferocity of the disinformation campaign they waged might lead you to believe they have something to fear. Mobile carriers certainly have immediate worries: SB 822 bans zero rating, which is common practice on the wireless side of things.

Mendez gave the California attorney general’s office an extra week to answer the two challenges. It has to file a single response by 26 October 2016. Then the federal justice department and the telco and cable front organisations have two weeks to prepare their rebuttals.

The door is also open for other interested parties to jump into the case. Anyone wanting to offer facts or arguments for or against California’s net neutrality law can request permission from the judge and file their briefs at the same time.

The schedule approved by Mendez gives any third party – an amicus curiae – that wants to support the Trump administration’s and telecom industry’s cases until next Friday, 19 October 2019, to file their paperwork. Those wanting to add their weight to California’s defence have until 2 November 2018.

FCC’s broadband paradox opens a door for California’s net neutrality law

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Both California and Washington now have laws on the books that, to one extent or another, reinstate network neutrality rules that were scrapped last year by the Federal Communications Commission. California’s law was challenged by the Trump administration in federal court a couple of hours after it was signed, on a Sunday afternoon, by governor Jerry Brown. Lobbying fronts for AT&T, Comcast, Charter, Frontier and other monopoly model telecoms companies soon followed.

Conventional wisdom has been that a state can’t regulate Internet access service, because it’s clearly a matter of interstate – international, really – commerce. Regulating it is, therefore, a responsibility that the U.S. constitution assigns to the federal government.

But when the FCC repealed its own 2015 net neutrality rules, it stepped away from the job completely, while at the same time telling states they couldn’t step in. That’s a paradox, according to communications law experts interviewed for a Wired article by Klint Finley

“It’s hard to find a case that’s perfectly, squarely applicable, where an agency says ’we’re vacating the field, and we’re not allowing anyone else to enter the field,’” says Marc Martin, a former FCC staffer during the presidency of George H.W. Bush who is chair of law firm Perkins Coie’s communications practice…

“Usually you have preemption where there is a federal rule and a state tries to enact an incompatible rule,” says Pantelis Michalopoulos, a lawyer with the firm Steptoe & Johnson who is representing net neutrality advocates in a federal lawsuit against the FCC. “You’re in a much weaker position when you try to preempt a state rule where there is no federal rule.”

On the same day that Wired posted its piece, the Wall Street Journal ran a scathing editorial accusing California’s “progressive imperialists” of breaking the Internet. Which won’t be allowed, because “the internet by definition is interstate communication”.

Except that the FCC’s most recent net neutrality ruling declares that broadband is not a telecommunications service and is, instead, an information service that’s outside of its control.

The FCC made an unconventional decision. There’s no particular reason to believe that the courts will rely on conventional wisdom to enforce it.

California IoT law requires manufacturers to build security into connected devices

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A pair of linked bills passed by the California legislature and signed into law late last month by governor Jerry Brown require manufacturers to preload passwords or install other security features on any kind of device that’s directly or indirectly connected to the Internet, beginning in 2020. Assembly bill 1906, carried by assemblywoman Jacqui Irwin (D – Ventura) and senate bill 327, authored by senator Hannah-Beth Jackson (D – Santa Barbara) are aimed at protecting privacy, and preventing the rise of botnets – networks of online devices that are infected with malware and used by cybercriminals for their own purposes.

The new law isn’t limited to consumer electronics products. Commercial and industrial devices – anything that’s part of the Internet of Things (IoT) – fall under the legislation’s broadband definition…

“Connected device” means any device, or other physical object that is capable of connecting to the Internet, directly or indirectly, and that is assigned an Internet Protocol address or Bluetooth address.

Manufacturers will have to equip a device with “a reasonable security feature” that’s “appropriate” to its “nature and function” and the type of information it collects. Preprogrammed passwords are specifically mentioned as acceptable, as is forcing users to create a password or otherwise “generate a new means of authentication” the first time they use it.

Enforcement of the new law is limited to the attorney general, county district attorneys and city and county attorneys. It doesn’t create a new windfall for contingency fee lawyers.

Up until now, California law hasn’t had much to say about IoT security. A law passed in 2015 requires warnings on Internet-connected television sets with voice recognition features, and prohibits using recorded conversations for advertising purposes. A 2006 bill established similar consumer notice requirements for WiFi access points.

A third IoT-related bill – AB 2167 by assemblyman Ed Chau (D – Los Angeles) – died in the California senate on the final day of the legislative session. It was specifically aimed at “ingestible” sensors used for health monitoring.

Stalled federal bill preempting local pole ownership, authority gets a push

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Congress might jump into the tug of war between the Federal Communications Commission and local governments over control of municipal property located in the public right of way. According to a story in Politico, the chairman of the federal senate’s commerce committee, senator John Thune (R – South Dakota) wants to move his small cell preemption billS. 3157 – ahead as the current congressional term winds down.

As originally drafted, S. 3157 tracks closely with the “small wireless facility” preemption ruling issued last month by the FCC. Permit application review times would limited, in some cases to as little as two months. The bill goes beyond the FCC’s plan and says that any permit that hasn’t been approved or denied before the shot clock runs out is automatically granted.

The bill also limits the amount that cities and counties can charge to lease out poles they own. Lease rates would be calculated using the same formula used to split utility pole costs between electric utilities and telecoms companies. In California, a typical rate is $25 per year per foot of space occupied on a pole. The net result would likely be rental rates below even the $270 a year that the FCC considers reasonable. That compares to the Californian average, which runs between $500 and $900 per pole per year.

Politico says that Thune wants to bring local governments on board with his bill, but he’s having a hard doing that…

The measure faces opposition from several organizations representing local and state governments. “I don’t know if they’re ever going to get on and fully endorse this,” Thune told reporters on Thursday. “I think in the end it’ll be hard, unless the cities get to a better comfort level than where they are today, it would be hard to advance the bill just because they have obviously a lot of influence with senators.” He said his staff continues to negotiate with an eye toward finding consensus and says a hearing is a good idea in any case “because I think we need to elevate the issue.”

A federal law has a lot more impact than an FCC ruling. As it stands now, the FCC can’t order a city to lease out a pole or issue a permit. It can only establish standards that judges might or might not use to settle disputes between cities and mobile carriers. And its authority even to do that is in question – last month’s FCC decision faces years of litigation before its effect is fully known.

Congress, on the other hand, does have the power to preempt state and local authority when communications and interstate commerce is involved, and delegate the job to the FCC.

Broadband speeds are the first casualty of truth

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Internet service offerings slow down when service providers are forced to advertise accurate speed levels. In particular, the speed of teaser packages, designed to lure in price conscious subscribers, fall by 41%. That’s the conclusion of a British consumer group, following a study of how ISP advertising practices changed in the wake of a new U.K. regulation that forces them to make accurate service claims.

The Consumers’ Association says the down shift was sudden, coming soon after the new rules took effect…

The majority of broadband providers have been forced to cut the headline speeds they advertise when selling deals, following recent changes to advertising rules, according to new [Consumers’ Association] research.

An analysis of the biggest broadband providers found that, since new rules were introduced by the Committees of Advertising Practice in May, 11 major suppliers have had to cut the advertised speed of some of their deals, with the cheapest deals dropping by 41%…

Previously, suppliers were able to advertise broadband deals which claimed ‘up-to’ speeds that only one in 10 customers would ever reach.

But the new advertising rules mean that at least half of customers must now be able to get an advertised average speed, even during peak times (8-10pm).

There’s no equivalent requirement in the U.S.

The Federal Communications Commission punted the consumer protection ball to the Federal Trade Commission. Even when it subsidises incumbent telcos, like AT&T and Frontier Communications, to provide 10 Mbps download and 1 Mbps upload service in rural areas, it only expects them to hit 80% of that speed 80% of the time.

The California legislature passed a generic online truth in advertising law last year, but didn’t specifically call out Internet service or ISPs. Enforcement is up to California attorney general Xavier Becerra, who hasn’t done anything with it yet.

In practice, ISPs on this side of the Atlantic can advertise any speed they want, regardless of actual performance, so long as they qualify it with “up to” and back it with a long list of exceptions and conditions, buried somewhere on their websites.

Shouldn’t we expect the truth too?

Big telecom drops lawyers and lobbyists on California’s net neutrality law

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Lobbying front organisations for AT&T, Charter, Comcast, Frontier and mobile carriers joined forces to mount another legal challenge to California’s new network neutrality law on Wednesday. The four are the American Cable Association (ACA), the Cellular Telecommunications Industry Association (CTIA), the National Cable Television Association (NCTA) and the U.S. Telephone Association (USTelecom) – they keep trying to rebrand themselves, but that’s what the initials originally stood for, and what they’re really about.

They filed a complaint and motion for an injunction in a Sacramento federal court, claiming that the network neutrality law – senate bill 822 – signed by governor Jerry Brown on Sunday is “a classic example of unconstitutional state regulation”. Because the Internet does not stop (or start) at California’s borders, it is inherently an interstate service, their argument goes. So, they say, the Federal Communications Commission’s most recent net neutrality decision overrides California law…

The 2018 Order expressly “preempt[s] any state or local measures that would effectively impose rules or requirements that [the FCC has] repealed or decided to refrain from imposing in this order or that would impose more stringent requirements for any aspect of broadband service” addressed in the 2018 Order.

SB–822 plainly falls within the scope of this express preemption provision. It is a state measure that seeks to reinstate net neutrality requirements that the 2018 Order repealed.

The lobbyists’ challenge follows a similar filing by the federal justice department on Sunday evening. It’s likely that the two cases will be combined, but for now the Trump administration’s challenge is taking the lead. It’s assigned to judge John Mendez, who scheduled the first hearing in the case for 14 November 2018.

California’s defence is led by attorney general Xavier Becerra, who has aggressively gone after high profile Trump administration policies, but also takes money from AT&T, Comcast and Charter. His response to their lawsuit was to tweet that it “was brought by power brokers who have an obvious financial interest in maintaining their stronghold on the public’s access to online content”. We’ll get a look at how he intends to do that in a couple of weeks, when his first response is due.

California kicks bots off of social media

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You won’t be able to use an anonymous bot to tweet or boost Twitter profiles, or post items on Facebook in California, beginning next year. Or use a bot that pretends to be a person to try to sell something – including a candidate for office – on high traffic websites.

California governor Jerry Brown signed senate bill 1001 into law. Authored by senator Bob Hertzberg, it’s particularly intended to stop automated social media posts that inject comments – fake or otherwise – into political debates.

It only applies to websites that attract at least 10 million unique, U.S. visitors per month. There are a couple of hundred websites that meet that qualification, according to Quantcast.com. The list includes big, California-based platforms, like Google, Youtube, Facebook, Apple and Netflix. But as written, it also applies to out-of-state giants, like Amazon and the New York Times.

SB 1001 makes it…

Unlawful for any person to bot to communicate or interact with another person in California online, with the intent to mislead the other person about its artificial identity for the purpose of knowingly deceiving the person about the content of the communication in order to incentivize a purchase or sale of goods or services in a commercial transaction or to influence a vote in an election.

Using a bot would still be legal, so long as it’s identified as such and the disclosure is “clear, conspicuous, and reasonably designed to inform persons with whom the bot communicates or interacts that it is a bot”.

Online platforms, web hosts and Internet service providers won’t have to do any policing. SB 1001 specifically doesn’t apply to them.

A “bot” is defined as “an automated online account where all or substantially all of the actions or posts of that account are not the result of a person”. It doesn’t appear to apply to customer service bots that websites use to communicate with visitors, but there’s enough wiggle room that the courts will have to decide where to draw the line. That’ll be after the law survives the inevitable challenges on First Amendment and federal preemption grounds.