Tag Archives: sb822

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

by Steve Blum • , , , ,

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

But that doesn’t mean that anything is decided.

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

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

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

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

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

by Steve Blum • , , ,

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

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

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

But.

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

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

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

Without a broadband cop, big ISPs write their own rules

by Steve Blum • , , ,

Reno 911

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

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

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

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

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

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

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.

Maine puts buy net neutral requirement on state, but not local agencies

by Steve Blum • , , , ,

Network neutrality is on the books in Maine. Governor Janet Mills signed legislative document 1364 into law last week. When it goes into effect later this year, the new law will require Internet service providers to sign net neutrality agreements when they do business with state agencies. They’ll have to pledge not to block or throttle Internet traffic on the basis of content, or engage in paid prioritisation – in other words, create fast lanes for their own content or for other customers…

E. “Net neutral service” means fixed or mobile broadband Internet access service that is provided without engaging in any of the following:
(1) Blocking of lawful content, applications, services or devices, subject to reasonable network management practices;
(2) Throttling; or
(3) Paid prioritization.
F. “Paid prioritization” means management of the network of an Internet service provider that provides broadband Internet access service to directly or indirectly favor some traffic over other traffic, either in exchange for monetary or other consideration from a 3rd party or to benefit an affiliated entity.

Net neutrality obligations do not apparently extend to local governments, however. The law applies to “a department, agency or instrumentality of the State” but not to “political subdivisions”, which is how local governments and agencies are usually referred to in Maine’s laws.

Maine’s net neutrality law is likely to have more practical impact than the version California passed last year. Senate bill 822 was challenged in federal court as the ink dried on governor Jerry Brown’s signature, and attorney general Xavier Becerra agreed not to enforce it until court challenges to the Federal Communications Commission’s repeal of net neutrality are complete, a process that could go on for several more years. A companion bill – SB 460 – which had the same kind of net neutrality purchasing requirements as Maine’s law was killed by lobbyists from AT&T, Charter, Comcast and other big telecoms companies that write big checks to California’s lawmakers.

“Epic livestream” to reinstate net neutrality marks anniversary of its demise

by Steve Blum • , , , ,

Open internet dont tread on me 2

It’s been a year since the Federal Communications Commission’s decision to scrap network neutrality rules took effect. So far, there’s no indication that wireline broadband providers have taken advantage of their new freedom to control the Internet, although mobile carriers apparently haven’t been as restrained.

To mark the day, an open Internet advocacy group, Fight for the Future, is doing a nine hour “epic livestream” to encourage the U.S. senate to pass a stalled net neutrality bill, and to generally make the case for freedom of access to the Internet. Shameless Plug Alert: I was invited to join the webcast, and I jumped at the chance.

In April, democrats in the U.S. house of representatives approved HR 1644, aka the Save the Internet Act, that would nullify the 2017 rollback, and reinstate network neutrality rules established in 2015 when the FCC also had a democratic majority. So far, the republican majority in the U.S. senate hasn’t done anything with it. There’s been talk that a symbolic effort to force a senate vote will be made today, and that’ll be the focus of Fight for the Future’s livestream event:

Watch widget screenshot 625

The FCC’s net neutrality rollback was also challenged in court. The federal appeals court based in Washington, D.C. – aka the D.C. circuit – heard oral arguments in February. There’s no way of knowing when the three judge panel will issue a decision, or what it will be. The FCC’s defence met with scepticism from one of the judges, but that’s poor basis for trying to make predictions. Whichever way it goes, the losing side has the option of asking the U.S. supreme court to take up the case.

That federal legal battle matters particularly in California, where a law reinstating net neutrality rules is in legal limbo. Senate bill 822 was passed by the legislature and immediately challenged in a Sacramento-based federal court by the federal justice department. Calfornia attorney general Xavier Becerra cut a deal with the Trump administration: enforcement of the new law and the Sacramento court challenge are both on hold until the challenge to the FCC ruling is resolved by the courts.

U.S. house passes net neutrality bill but leaves the devil in the details and its fate to the senate

by Steve Blum • , , , ,

El diablo

A network neutrality bill cleared the democrat-controlled U.S. house of representatives yesterday and is on its way to the U.S. senate, where republican leader Mitch McConnell has been widely quoted as saying it’s “dead on arrival”. The vote in the house was “mostly along party lines”, with only republican – Bill Posey (R – Florida) – joining democrats, according to The Hill.

The text of the bill hasn’t been posted yet. The first draft simply reinstated the Obama-era net neutrality rules and blocked the Federal Communications Commission from making any changes. A later amendment gave smaller Internet service providers – those with fewer than 100,000 customers – an extra year to comply with some of the terms.

According to the Electronic Frontier Foundation, which tracked the action yesterday, more changes were made on the house floor, which were mostly benign but…

One amendment does give us pause, though. The last amendment to the bill (McAdams), affirms a bit from the old Open Internet Order, saying that the net neutrality prohibition on blocking doesn’t prevent ISPs from blocking “illegal” content, a distinction that includes copyrighted material…A broad reading of this amendment could easily have greenlit Comcast’s throttling of Bit Torrent, which led to a past FCC sanctioning the cable company for violating net neutrality…

As ISPs and media companies become even more intertwined, it’s easy to imagine this loophole being exploited. However, legislative debate..made clear that this amendment did not give an ISP the right to censor content solely because the ISP thought the content was unlawful.

It’ll take more than one renegade republican in the senate to prove McConnell wrong. But it’s happened before. Shorty before the current FCC rules took effect last year, three republican jumped ship and voted for a resolution of disapproval. It could have reversed the FCC’s decision, but didn’t go anywhere in the then-republican majority house.

Federal appellate judges skeptical of FCC’s net neutrality reasoning

by Steve Blum • , , ,

Network neutrality advocates faced off against the Federal Communications Commission and its telecoms industry partners in a federal appeals court in Washington, D.C. on Friday. For more than four hours, a panel of three federal judges grilled both sides as they considered whether the FCC acted “arbitrarily and capriciously” when it rolled back net neutrality rules in 2017.

The central question is whether broadband service is a simple telecommunications service – like phone service – or a value-added information service. FCC lawyer Tom Johnson insisted that the traffic management and routing technology that enables communication via the Internet – the domain name system and caching – is fundamentally different from the traffic management and routing technology that makes it possible to dial a phone number.

Judge Patricia Millett didn’t seem to buying that argument…

Millett: They both have the capability, the capability of acquiring information, receiving information, through a telephone as much as…

Johnson: Under the broader theory that these are broad statutory provisions in which we are able to make different classification decisions based on the fact that we’re talking about different services here.

Millett: That’s what I’m trying to figure out, are you talking about different capabilities between phones and if someone uses Facetime?

Johnson: Yes, your honor, we just don’t think that phone service in offering a pure transmission pathway for ordinary voice communication offers the same dynamic experience that broadband does in accessing the Internet, but in addition it also offers…

Millett: I hear you saying those words, I’m really trying to make sure I’m understanding what the difference is, because people use telephones to acquire all kinds of information…If I want to get information from my pharmacy – I’d like to have something refilled – I can call over the phone and push a bunch of buttons and eventually I’ll have a prescription refilled. I can also go on the website and type in and tell the doctor’s office I’d like a prescription refilled. But it seems to be the exact same functionality. One is voice and one is typing, but that can’t be difference.

Johnson never directly answered Millett’s question. His defence was that there was sufficient ambiguity in federal law to create an opening for the FCC to exercise its discretion as the federal government’s expert agency in these matters. Typically, federal courts defer to that – they don’t consider whether an expert agency made the best decision, but rather whether the decision reached was one of many possible and reasonable interpretations of the facts and the law.

The plain fact is that broadband is a telecommunications service. People use it to transmit and receive information between two point without changes. The give and take at Friday’s hearing indicates that the three judges understand that point well.

Listen to the hearing here.

Big telecom will see familiar, friendly faces at California capitol in 2019

by Steve Blum • , , , ,

California capitol horses 625

California broadband policy will be in the same legislative hands in 2019. Senate and assembly leaders announced committee assignments for the new term, and the chairs of the committees that dealt with major telecoms issues over the past couple of years remain the same.

Miguel Santiago (D – Los Angeles) retained his seat as chair of the assembly communications and conveyances committee. He didn’t make it into the top ranks – no leadership post or a seat on the powerful rules, appropriations or budget committees. But he’ll be able to continue to keep deep pocketed patrons, like AT&T, Comcast and Charter Communications, happy. As he tried to do when he (temporarily) blocked senate bill 822 – the net neutrality law – last year.

Santiago’s principal wingmen are back, too. Evan Low (D – Santa Clara) and Eduardo Garcia (D – Imperial) are once again on the communications and conveyances committee. Besides backing Santiago when he gutted SB 822, Low has (unsuccessfully) carried a copper-killer bill for AT&T and Garcia turned the California Advanced Services Fund into a $300 million piggybank, also for AT&T as well as Frontier Communications and cable companies. Garcia kept his seat on the appropriations committee; Low moves up to chair of the business and professions committee. Jay Olbernolte (R – San Bernardino), who also opposed SB 822, is back as the vice chair of the communications and conveyances committee.

The assembly privacy and consumer protection committee remains in the hands of Ed Chau (D – Los Angeles). He’s already introduced a placeholder bill that is a likely vehicle for amending the new privacy law that he authored last year. It was passed in order to block a tougher initiative that was otherwise headed to the November ballot. How he responds to the mounting pressure to soften it from tech industry interests is a key question for the coming session.

On the senate side, Ben Hueso (D – San Diego) returns as chair of the energy, utilities and communication committee. He, too, was a good friend of AT&T and other mobile carriers in 2017 when he enthusiastically, if not articulately, pushed SB 649. That bill, which was eventually vetoed by governor Brown, would have given them virtual ownership of street light poles and other municipal property they covet. The new vice chair of energy, utilities and communications is John Moorlach (R – Orange).

U.S. mobile carriers asked to explain tests showing they throttle particular video providers

by Steve Blum • , , , ,

Three U.S. senate democrats are calling out the four major mobile carriers on their throttling and prioritisation policies. Senators Edward Markey (D – Massachusetts), Richard Blumenthal (D – Connecticut), and Ron Wyden (D – Oregon) sent joint letters to the CEOs of AT&T, Sprint, T-Mobile and Verizon, asking them to explain results from an Internet traffic testing app that indicate they’re deliberating slowing some traffic down…

We write to express our concern that mobile carriers may be inappropriately throttling and prioritizing internet traffic from common mobile apps without the knowledge of their customers. Through the use of the app Wehe, researchers recently identified numerous instances of cellular providers throttling video and communications services.’ Such practices would violate the principles of net neutrality and unfairly treat consumers who are unaware that their carriers are selecting which services receive faster or slower treatment…In light of this study, we write to ask you about your policies regarding the treatment of internet traffic.

The companies are not obligated to respond and, given that the U.S. senate will remain in the control of republicans, the threat of a hearing or other compulsory action isn’t readily apparent. But it could be embarrassing, and it’s a good bet that the three senators will make the most of that opportunity, should it arise.

On the other hand, if they do respond, it’ll be interesting to see what they say. And particularly interesting if AT&T CEO Randall Stephenson cops to throttling the three video services – YouTube, Netflix, and NBC Sports – that the letter calls out. His chief staff lobbyist in Sacramento, Bill Devine, claimed that AT&T does not “degrade Internet traffic” during hearings on senate bill 822 – California’s net neutrality law – earlier this year. He didn’t stick to the truth in other respects; the question now is whether his boss will try to bluff it out too.