Tag Archives: sb822

FCC proposes to pat its own back for a net neutrality repeal well done

by Steve Blum • , , , ,

In a rush to approve as much of the republican majority’s agenda as possible before next month’s election, the Federal Communications Commission published several draft decisions last week, that will presumably be approved at its next meeting, on 27 October 2020. Included in that batch is a draft of a clean-up ruling that addresses problems a federal appeals court found with its 2017 network neutrality repeal. None of the issues were considered serious enough to nullify the repeal, but the court did tell the FCC to fix them.

The appeals court had four specific objections to the FCC’s net neutrality repeal. Three are addressed in the draft order – impact on public safety, pole attachment rules and broadband’s eligibility for lifeline subsidies, such as those adopted last week by the California Public Utilities Commission:

  • Public safetynothing to see here, move along, move along is the FCC’s response. It went through the bureaucratic motions of reviewing its net neutrality rollback and concluded that it “promotes public safety”. Well, then.
  • Pole attachments – this issue doesn’t impact California, or any other state that regulates its own pole attachments. In the draft, the FCC admits that taking common carrier status away from companies that only provide broadband, and not phone or video service, is a problem in states that use the default federal pole attachment rules, but the damage is inconsequential compared to the totally awesome wonderfulness of its net neutrality repeal.
  • Lifeline – the draft concludes that so long as broadband is delivered over a network that supports phone service, there’s nothing in federal law that prevents subsidising it for low income households. The CPUC’s wireline broadband program bundles broadband and voice service, so no problem there.

The fourth issue – the court’s rejection of the FCC’s blanket preemption of state and local broadband regulations – will stand as is, at least for now. It wasn’t included in the FCC’s net neutrality do-over earlier this year, so it’s not a part of the draft order that’s on the table. California’s defence of its net neutrality law leans heavily on that appellate ruling.

No power to regulate broadband means the FCC has no power to preempt California’s net neutrality law

by Steve Blum • , , ,

California is firing back at the monopoly model telecoms companies that want to block the state’s network neutrality law. Senate bill 822 was passed by the legislature and signed by governor Jerry Brown in 2018. It’s been on hold while a court fight over the Federal Communications Commission’s repeal of its own net neutrality rules played out.

Now it’s in front of a federal judge in Sacramento. The job of defending SB 822 belongs to California attorney general Xavier Becerra. His office filed its first full response to the claim that SB 822 is preempted by the FCC’s decision.

When the FCC declared that broadband is an “information service” and not a common carrier “telecommunications service”, it put broadband into a category of services that it’s not allowed to regulate in any meaningful way. That lack of authority was the FCC’s basis for repealing net neutrality rules: no authority means no rules.

In the brief, the California attorney general’s office argues that if there’s no authority to regulate, then the FCC also lacks authority to preempt state laws in that regard. That’s taken directly from the D.C. appellate court decision last year that mostly upheld the FCC’s net neutrality repeal. One big exception was the FCC’s attempt to impose a blanket preemption on state level broadband regulations.

Consequently, the brief concludes, California can go its own way…

The FCC repealed the bulk of the [Obama era net neutrality rules] because it determined it had no statutory authority to impose net neutrality conduct rules on [broadband] providers. That is different from a congressionally-authorized decision to refrain from regulating [broadband] providers; therefore, the repeal does not have preemptive force. That SB 822 enacts many of the same net neutrality protections repealed by the 2018 Order does not, in and of itself, result in conflict preemption. It is “quite wrong” to view the absence of federal regulation, on its own, “as the functional equivalent of a regulation prohibiting all States and their political subdivisions from adopting such a regulation.”

The first decision that federal judge John Mendez has to make is whether to ice California’s net neutrality law while the court battle drags on. If he says no and rejects Big Telecom’s request for a preliminary injunction that would block enforcement of SB 822, net neutrality will be the law of the land in California.

Net neutrality returns to California, in law and in court

by Steve Blum • , , ,

Zero rating destroys internet

Once again, network neutrality is law of the land in California, although there’s not much practical effect yet. Two years ago, the California legislature passed and governor Jerry Brown signed senate bill 822, authored by Scott Wiener (D – San Francisco). It bans blocking, throttling and paid prioritisation of Internet traffic on the basis of content, including specifically zero rating in-house content, as AT&T and other wireless carriers do.

The Trump administration and lobbying fronts for major telecoms companies immediately filed a challenge in a Sacramento federal court. California attorney general Xavier Becerra agreed to put the law on hold until appellate challenges to the Federal Communications Commission’s 2017 repeal of net neutrality rules were resolved.

That’s a done deal now. A federal appeals court ruled last year that the FCC’s action was mostly correct. Among the exceptions was the bit of the net neutrality repeal order that banned states from taking action. The FCC is scrambling to plug that loophole, and other federal laws may end up having the same effect anyway, but the odds of SB 822 surviving are better than they were.

The net neutrality advocates behind the appeal asked the court to reconsider, which it declined to do. They then pondered whether to take it the to federal supreme court, eventually deciding not to do so last month.

The final thirty day waiting period expired last week. As it did, the Trump administration and the lobbyists and lawyers for cable, telcos and wireless carriers went back to Sacramento and renewed their pleas to block California’s law, which Becerra, in theory, should now be enforcing.

Becerra hasn’t revealed any plans he might have. He’s found the time to issue a press release on migratory birds, but so far not a word about net neutrality. It would make sense for him to wait until the judge hearing the challenge to SB 822 decides whether to put it on ice while the case grinds on. It might also make sense – to Becerra, at least – to hold off antagonising the big telecoms companies that have been so generous to him in the past.

Muni broadband, net neutrality get bland nods in Biden’s peace treaty with Sanders

by Steve Blum • , , , ,

Sanders biden

Joe Biden’s campaign agreed to a skeletal broadband policy in what amounts to a peace treaty with Bernie Sanders and his supporters. The “unity task force recommendations” published on Wednesday amount to little more than a declaration that broadband is good, but it’s the first time that Biden has explicitly signed on to any conventional democratic party positions on telecommunications policy.

The document has the usual nice words about broadband being essential to life in the 21st century, with the standard nod to education. It makes a constitutionally dubious pledge to remove state bans on municipal broadband projects and to spend money on all types of infrastructure, including, particularly, muni broadband.

Network neutrality gets a mention. The “recommendations” propose to…

Restore the FCC’s clear authority to take strong enforcement action against broadband providers who violate net neutrality principles through blocking, throttling, paid prioritization, or other measures that create artificial scarcity and raise consumer prices for this vital service.

Presumably, what they really mean is that Biden will appoint FCC commissioners who will use the “clear authority” that already exists. Which means policy ping pong will continue. During the Obama administration, the democratic majority on the Federal Communications Commission classified broadband as a regulated common carrier service. The Trump administration’s republican led FCC said it wasn’t.

The recommendations don’t explicitly promise to restore broadband’s common carrier status. There are other ways of imposing net neutrality obligations on Internet service providers, as California discovered. Initially, the Obama era FCC proposed a no lobbyist left behind approach that would have allowed monopoly model incumbents to negotiate permission for decidedly non-neutral network management practices.

Direct intervention by the Obama white house put an end to that pretence. Whether a Biden administration would do the same is an open question. Biden has enjoyed a long and comfortable political career in a system fuelled by, and largely subservient to, cash from corporations and labor unions. The peace treaty with Sanders doesn’t change that reality.

AT&T blows off net neutrality as it zero rates HBO Max

by Steve Blum • , , , ,

Marvin fire

AT&T is giving its HBO Max streaming service a free ride on its mobile broadband network. The bandwidth consumed by AT&T mobile customers while watching HBO Max programming won’t be counted against their monthly data caps. According to a story in The Verge by Nilay Patel, AT&T’s streaming competition won’t get the same zero rating treatment…

HBO Max, AT&T’s big bet on the future of streaming, will be excused from AT&T’s mobile data caps, while competing services like Netflix and Disney Plus will use up your data…

AT&T…confirmed to The Verge that HBO Max will be excused from the company’s traditional data caps and the soft data caps on unlimited plans.

The story goes on to say that AT&T offers other streaming platforms the opportunity to pay for the bandwidth their subscribers consume, but none have found the deal compelling enough to take it. It works for AT&T because it’s just taking money out of its HBO Now pocket and putting it into its AT&T mobile pocket.

Whether it’s a privilege it reserves for itself or one it sells to others, AT&T’s zero rating tactic is the kind of conduct that network neutrality rules are intended to stop. If there were network neutrality rules. The current Federal Communications Commission thinks zero rating and pretty much anything else AT&T does is just fine – that’s why the republican majority voted in 2017 to repeal the net neutrality rules established during the Obama administration.

It’s different in California, sorta. A law passed in 2018 bans “zero-rating some Internet content, applications, services, or devices in a category of Internet content, applications, services, or devices, but not the entire category”, or accepting payment to do so. Unfortunately that law – senate bill 822 – is on ice right now. California attorney general Xavier Becerra agreed not to enforce it while appeals of the FCC’s 2017 decision work their way through the federal courts.

A federal appeals court in Washington, D.C. refused in February to reconsider its earlier decision (mostly) upholding the FCC’s net neutrality rollback. The nominal 90-day deadline for taking it to the federal supreme court passed without action last month. The net neutrality battle could be back in California soon.

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.