Tag Archives: public policy

Study spots “third wave” of community broadband enthusiasm, but no swell of cash

by Steve Blum • , , ,

Wipeout

A “third wave” of community broadband initiatives is developing in the United States, but before it’s surfable, state and federal policy changes are needed. That’s the conclusion of a paper written by Sharon Strover, Martin Riedl and Selena Dickey, of the University of Texas at Austin.

They identify barriers deliberately created by lobbyists working for major incumbents and their capture of policy making machinery – such as the Federal Communication Commission’s industry-dominated broadband deployment advisory committee which offered legislative recommendations that would “eliminate municipal broadband”. But they also see community and corporate trends that are pushing against monopoly business models…

We see potential for community network development in the United States, acknowledging existing projects but also an abundance of obstacles. Their presence and growth testifies to the need for alternative regulatory arrangements…

New connectivity models in the space of community networks, innovation in terms of open source hardware, newly opened spectrum such as TV white spaces, as well as investments through private corporations into connectivity efforts such as terragraph (Facebook) and satellite internet (Facebook, Google, others), all foment this third wave of community networking efforts, but can only succeed in the long run if they are simultaneously accompanied by supportive federal and state policies. In the broad scheme of things, this calls for an end to protectionist legislation curtailing the opportunities to experiment and to offer services that communities themselves believe are more efficient, less costly and more attuned to their needs.

Strover, Riedl and Dickey are correct in calling for open and creative use of public money earmarked for educational and medical networks, greater flexibility in federal programs and more widely available state and local subsidies “to various types of providers”.

That’s a good start toward solving the critical problem that community, and particularly municipal, initiatives face: paying for building a network and for operating deficits that might last far longer than advocates generally care to contemplate. But it’s only a partial solution. Consumers and businesses also have to embrace the reality that better infrastructure and service comes at a price, and universal infrastructure and service comes at a universal price. There’s a point where someone else’s money becomes everyone’s money.

TANSTAAFL.

Scoping New Policy Frameworks for Local Broadband Networks, Strover, Riedl and Dickey.

Draft rules for businesses add enforcement detail to California’s consumer privacy law

by Steve Blum • , , ,

Gagged by privacy

California’s tough consumer privacy law technically takes effect in January, but enforcement won’t begin until next July. The California attorney general has the job of writing the detailed rules that businesses will have to follow, and then enforcing those rules.

The first draft of those new rules was posted for public review and comment. They apply to businesses with more than $25 million in “annual gross revenues”, or collects or deals in “the personal information of 50,000 or more consumers, households, or devices”, or that deal in people’s personal information for a living.

Such businesses have to let customers know what kinds of information they’re collecting, and give them an easy way to opt out of any sale of their info to third parties. The California Consumer Privacy Act was designed with online businesses in mind – the default assumption is that businesses will post notices and receive opt out orders via their websites – but it applies equally to companies that have no online presence at all, or that only interact with customers in person. The draft rules cover those situations, too.

There are separate and stricter rules about gathering information from children and teens.

Opting out is not supposed to result in higher prices for consumers, unless a discount offered in exchange for permission to sell is “reasonably related to the value of the consumer’s data”. Otherwise, discounts have to be available on a non-discriminatory basis to all customers. The draft doesn’t provide a lot of guidance as to what’s discriminatory and what’s not, but it does offer a couple of examples, such as…

A music streaming business offers a free service and a premium service that costs $5 per month. If only the consumers who pay for the music streaming service are allowed to opt-out of the sale of their personal information, then the practice is discriminatory, unless the $5 per month payment is reasonably related to the value of the consumer’s data to the business.

Public hearings are scheduled around California to get input on the draft, and written comments can be submitted by the 6 December 2019 deadline.

California Department of Justice CCPA documents:
Proposed Text, California Consumer Privacy Act Regulations, 11 October 2019
Initial Statement Of Reasons, Proposed Adoption of California Consumer Privacy Act Regulations, 11 October 2019
Notice of Proposed Rulemaking Action, California Consumer Privacy Act, 11 Oct 2019
Economic and Fiscal Impact Statement, California Consumer Privacy Act Regulations, 14 August 2019
Standardised Regulatory Impact Assessment, California Consumer Privacy Act of 2018 Regulations, 14 August 2019

Newsom vetoes California broadband development bills

by Steve Blum • , , , ,

Governor Gavin Newsom killed the only two bills on his desk that might have improved broadband infrastructure and service in California. The bills would have given broadband development mandates, of a sort, to three key state agencies: Caltrans, the department of water resources (DWR) and the department of food and agriculture (DFA). Newsom vetoed assembly bill 1212 last week, and AB 417 was one of dozens that died as he cleared his desk this weekend, ahead of the 30 day deadline for acting on this year’s legislation.

AB 1212 and AB 417 were the only broadband-related bills of any consequence that made it out of the California legislature’s 2019 session. Bills that would have more directly tackled California’s broadband gaps died in committee, as did AB 1366, an AT&T-backed bill that would have effectively ended telecoms regulation and widened the divide between the states haves and have nots.

AB 1212 included “telecommunications” as one of the types of infrastructure that Caltrans and the department of water resources (DWR) could include on funding priority lists, which would have to be prepared and submitted to public employee pension boards for consideration as investments.

AB 417 added rural economic development to DFA’s responsibilities, and “increasing broadband access” was on its short list of action items. Unlike the federal agriculture department, the California DFA does not play a significant role in improving rural economies beyond promoting farming and ranching.

There was no overt opposition as the bills moved through the legislative process. But what happens behind closed doors usually matters more in Sacramento.

In a dissembling veto message, Newsom said AB 1212 is “unnecessary” because “existing law already encourages public retirement systems to invest in state infrastructure”. True, but no one has to propose anything, of any kind. Without a specific mandate, Caltrans or DWR are highly unlikely to include broadband facilities in their projects, whether or not they ask for public employee retirement boards for funding, unless it’s something intended for their own use.

He was more pointedly bureaucratic in explaining why he didn’t want DFA involved in rural economic development, saying “establishing the new…responsibilities envisioned by this bill is better done in the budget and in the context of the broader mission of the department”.

The simplest explanation for Newsom’s vetoes is that Caltrans, DWR and/or DFA staff asked him to do it, because those are jobs they don’t want to do. That sort of opposition was why a Caltrans dig once policy bill was watered down in 2016.

It’s tempting to point a finger at lobbyists for AT&T, Comcast, Charter Communications, Frontier Communications and other incumbents, who have consistently opposed state support for independent broadband projects while gaming the system to create their own taxpayer funded piggy banks. But there’s no indication – yet – that they were involved. Even so, Newsom’s vetoes bolster AT&T’s and Frontier’s rural monopoly business model, which redlines poorer and less densely populated communities and leaves them with low speed DSL service, if they’re lucky enough to get anything at all.

It’s a long shot bet that any meaningful broadband projects would have resulted from AB 1212 by itself. Likewise, without adding a significant amount of staff and funding – which AB 417 did not do – there’s little chance that DFA would accomplish anything of practical economic development value. But both bills would have created institutional frameworks to build upon. The bills that Newsom vetoed are now opportunities lost.

Federal court fast not-so-slow tracks appeals of FCC’s preemption of local pole ownership

by Steve Blum • , , , ,

The good news is that the appeal of the Federal Communications Commission’s preemption of local ownership of streetlight poles will be fast tracked. The not so good news – which isn’t exactly news to people who follow such things – is that fast is a relative term.

An order issued yesterday by the ninth circuit federal appellate court in San Francisco granted a request “to expedite oral argument” in the case, made by dozens of local governments. What that means is that the court is looking at “dates for February 2020 and the two subsequent…months” for those arguments to happen.

The judges hearing the case will also have to decide whether to handle everything at once, or break it up into more manageable bits. The primary case involves two decisions made by the FCC last year, both dealing with the way state and local governments manage access to roads and anything else considered to be the public right of way, and the degree of ownership control they can exercise over structures, such as light poles or traffic signals, they install there. One decision dealt mostly with deployment of wireline telecoms infrastructure, the other with wireless facilities.

One issue that’s particular to municipal electric utilities – whether federal law allows the FCC to regulate their utility poles – was separated out earlier. The cities and counties litigating the main case asked for arguments for and against one touch make ready rules for privately-owned utilities to be heard separately. Yesterday’s order said the three judge panel will sort that out later.

Assuming that oral arguments happen sometime between February and April, and the judges issue a decision in a three to six month time frame (typical, but it could be longer or shorter), then we won’t know if the FCC’s decisions will stand until this time next year. That’ll add to the uncertainty faced by cities as they try to manage the expected avalanche of permit applications for small cell facilities and associated fiber optic installations.

Cities ask federal court to speed up review of pole ownership preemption, FCC says keep it slow

by Steve Blum • , , , ,

La small cell

Local governments from around the U.S. asked the federal appeals court in San Francisco to speed up consideration of their challenge to the Federal Communications Commission preemption of local ownership and control of the public right of way and assets located in it, such as street light poles and traffic signals.

In a motion filed last month, they told judges that on the one hand, disputes are piling up, and on the other, the FCC is aggressively pushing ahead…

First, there are several other cases progressing through the lower courts that will be affected by the outcome of this appeal…Delay in resolution will simply complicate the work of district courts and Circuit Courts of Appeal throughout the country, as more applications are filed and more disputes arise.

Second, this appeal is a matter of great importance to virtually every locality in the nation. While this appeal is pending, Local Government Petitioners and Supporting Intervenors and similarly situated parties are confronted with uncertainty as to how to develop and apply local standards for small cell deployment, which is rapidly occurring…

Third, the Commission is not waiting for this Court to decide the validity of the Orders challenged on appeal. In fact, the Commission is currently building on those Orders, which makes possibly unwinding them all the more difficult.

The FCC opposes anything that would speed up what increasingly looks like a case it will lose. Its response says, in effect, there’s no reason to hurry, because any problems that are created can be fixed later. That was the gist of a ruling earlier this year by federal appellate judges in Denver, just before they handed everything off to their colleagues in San Francisco.

That’s a line of argument that might apply equally well to the FCC’s preemption orders, which also set tight deadlines for action on permit applications filed with local government by telecoms companies.

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.

Salinas, AT&T sign master pole license agreement with small cell design standards and $750 annual rent, sorta

by Steve Blum • , , , ,

Downtown salinas

AT&T and the City of Salinas hedged their bets and signed a master license agreement for attaching small cell sites to city-owned poles that complies with current Federal Communications Commission guidelines, but snaps back to market-based fees if those rules are changed, or overruled by a federal court.

Last year, the FCC declared that municipal assets installed along roads or otherwise in the public right of way, like street light poles or traffic aren’t really city (or county) property, but instead are part of the right of way itself. In California, that would mean that mobile broadband companies could hang wireless antennas and other equipment on street lights at will, simply by filing for an encroachment permit. The FCC said any fees have to based on cost, not market prices, and it decided that $270 per year is what a city’s costs should be. It has since backed away from some of the restrictions it wants to impose, as it defends its ruling against lawsuits filed by dozens of cities.

Under the terms of the deal, if the FCC’s preemption of local street light pole ownership survives the federal appellate court challenge underway in San Francisco, then AT&T will pay the City of Salinas a “monitoring fee” of $270 per pole per year to install “small wireless facilities”. If it’s overturned, then a license fee will kick in, raising the yearly total AT&T has to pay Salinas for each pole to $750 for the first year, with a 2.5% annual increase in the license fee portion after that.

$750 per year falls in the middle of the average range for city pole rental fees in California, although it’s less than typical rates in the San Francisco Bay Area, which tend to be in the $1,500 per year ballpark. Unless the ballpark is in San Francisco proper – $4,000 is common there.

AT&T also agreed to follow particular construction standards for small cell installation on city-owned poles. It will…

  • Follow the City of Salinas’ small cell design standards, which limit antenna enclosures to twice the width of and no more than 20% higher than an existing pole, require equipment to be located underground or mounted on poles, and set standards, including anti-graffiti measures, for screening everything.
  • Cooperate with the City on pre-approval of standard small cell designs that can then be deployed quickly and widely.
  • Not install small cell facilities on traffic lights, or any pole “supporting signs or devices used to control or direct…traffic”.
  • Abide by the City of Salinas’ Dig Once policy, which could require AT&T to use existing conduit or fiber routes in some circumstances, and allows notices to go out to other companies that might be interested in participating in projects that involve excavating city streets.

It’s City policy to support 4G mobile network upgrades and 5G deployments so “Salinas businesses can remain economically competitive” and “residents have the ability to access resources (including educational resources) that are available through the Internet”. Its efforts aren’t limited to promoting better mobile service. As part of its Dig Once program, the City installs conduit in its own road projects and made broadband infrastructure upgrades a top priority for its economic development initiatives, particularly in Salina’s Ag Tech Corridor and downtown area.

I’m a consultant to the City of Salinas and assisted with the development of its broadband policy and agreements. I’m not a disinterested commentator. Take it for what it’s worth.

Master License Agreement for Wireless Installations on Public Structures, by and between the City of Salinas and AT&T, 13 August 2019
City of Salinas, City Council Resolution, Authorising Mayor to Sign AT&T Master License Agreement, 13 August 2019
City of Salinas, Staff Report, License of City Facilities for Small Cell Sites, 13 August 2019

City of Salinas, City Council Resolution, Small Wireless Facility Regulations, 2 April 2019
City of Salinas, City Council Resolution, Small Wireless Facility Fees, 2 April 2019
City of Salinas, Staff Report, Small Wireless Facility Regulations and Fees, 2 April 2019

City of Salinas, City Council Resolution, Wireless Telecommunications Facility Lease Policy, 17 April 2018
City of Salinas, City Council Staff Report, Wireless Telecom Leasing Policy, 17 April 2018

City of Salinas, City Council Resolution, Policy Reducing Underground Excavation for Communications Infrastructure within the City Right Of Way, 15 November 2016
City of Salinas, Staff Report, Reducing Underground Excavation for Communications Infrastructure within the City Right Of Way, 15 November 2016

CPUC approves DSL upgrade subsidy for Frontier at $4,700 per home

by Steve Blum • , , , ,

Weimar casf project

The California Public Utilities Commission approved a $693,000 grant to Frontier Communications from the California Advanced Services Fund (CASF) for a DSL equipment upgrade in the Placer County community of Weimar earlier this month. It was a considerably smaller grant than Frontier requested.

The project originally included the somewhat larger town of Colfax and called for a CASF subsidy of $2.3 million to reach 1,400 homes that, Frontier said, lacked access to broadband service at California’s pathetic minimum of 6 Mbps download and 1 Mbps upload speeds. Other Internet service providers in the area begged to differ, however. Two wireless ISPs, Colfax.net and SmarterBroadband, which have made a habit of blocking wireline upgrades, challenged Frontier’s request, as did the local cable operator, Wave. As a result more than two-thirds of the budget and nearly 90% of the households were chopped, and the cost jumped to $4,700 per premise…

Staff notes that this is a DSL project, and the cost would be higher compared to other DSL projects approved by the Commission. The total number of households for this project is 148, which is significantly less compared to other Frontier DSL projects that range from 234 to 1,017 total households. The higher cost per household is due to the low density of eligible households in the project area. Further, in addition to the equipment upgrades to the Weimar Central Office, Frontier must also upgrade equipment facilities at its Colfax Central Office in order to serve the Weimar project area. Due to the additional equipment upgrades required in Colfax, the cost per household increased by $1,000 overall.

Frontier gave up federal money for the area, in order to maximise its Californian subsidy, which covers 90% of the construction cost for the DSL central office upgrade and 1,000 feet of new fiber, apparently for a lateral connection to a middle mile route. Frontier is only promising the minimum performance level for CASF funded projects of 10 Mbps down/1 Mbps up, but CPUC staff “estimates 50 percent of CASF-eligible households are within roughly 5,000 feet of Frontier’s terminals and should expect very fast service (25 Mbps to a maximum of 115 Mbps)”.

Frontier’s financial woes rated a mention, but didn’t raise any concerns. The CPUC resolution concluded that Frontier “has managed to stabilise its revenue and made significant efforts to reduce debt and improve its financial leverage profile”.

Proposed California initiative would toughen and lock in consumer privacy rules

by Steve Blum • , ,

The man behind California’s new privacy law doesn’t like what lobbyists are trying to do to it in Sacramento, and plans on taking his case directly voters. In 2018, Alastair Mactaggart and his organisation – Californians for Consumer Privacy – collected enough signatures to get a tough privacy law on the ballot, but withdrew the initiative after a deal with was cut with lawmakers to enact most of its provisions. But anything the legislature can do, it can also undo, so Mactaggart is going back to the voters. According to the initiative’s text, filed with the California attorney general’s office yesterday…

Even before the [California Consumer Privacy Act] had gone into effect, however, businesses began to try to weaken the law. In the 2019–20 legislative session alone, members of the Legislature proposed more than a dozen bills to amend the CCPA, and it appears that business will continue to push for modifications that weaken the law. Unless California voters take action, the hard-fought rights consumers have won could be undermined by big business.

If enough valid signatures are collected and it’s approved by Collected voters, the initiative would generally tighten restrictions on the kind of personal information that businesses can collect from consumers and required them to disclose, in advance, “the specific purposes” for which the data will collected or used, and to go back and notify consumers if they want use the information for other reasons. It would ban the collection of personal information from children less than 13 years old without parental permission, and from teenagers between 13 and 16 without their permission. Consumers all ages would gain the right to demand that a business delete or correct personal information, within limits, even if it was collected with permission.

The initiative would also create the “California Privacy Protection Agency”, with an initial budget of $5 million a year. It would be run by a five person, politically appointed board, and have the “power to audit a business’s compliance” with the new privacy law, including the authority to subpoena “books, papers, records or other items”. The agency could issue fines for violations.

If passed, the California legislature’s ability to water down the initiative’s provisions would be severely limited. Mactaggart needs signatures from more than 600,000 registered voters to get it on the 2020 ballot.