FCC republicans chase San Francisco “bogeyman”

12 July 2019 by Steve Blum
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Bay to breakers

San Francisco’s open access law that allows any Internet service provider to use landlord-owned wiring inside a building to reach tenants might not be so preempted by Wednesday’s Federal Communications Commission decision. And the FCC’s republican majority is acting more like hired gun lawyers advocating for monopoly-model incumbents than the disinterested expert regulators they’re supposed to be.

Jon Brodkin breaks down the back and forth in a good article in Ars Technica. The ruling formally adopted by republican commissions says that San Francisco can’t require one ISP to share wires it’s already using with another ISP. San Francisco’s response amounted to we don’t require that, so what are you all worked up about? FCC commissioner Jessica Rosenworcel, a democrat, voted against the ruling and blasted her colleagues for running scaredf making up rules on the fly…

Our preemption of this municipal ordinance is stunningly weak. We somehow claim we have unfettered authority when it comes to broadband in buildings but disown our general authority over the same in our net neutrality proceeding, where we pronounced broadband beyond the reach of this agency. So this ruling borrows from old cable signal leakage policies to suggest some new theory of preemption is appropriate. This doesn’t add up…

It is not clear this agency even understands the San Francisco law it seeks to preempt. The law prohibits building owners from interfering with the right of tenants to exercise choice when it comes to communications…the FCC contorts this into a non-existent bogeyman, suggesting that the ordinance compels sharing of wiring that is already in use. This is simply not true…Why are we preempting an imaginary possibility in a city ordinance in San Francisco?

The Trump administration’s FCC bases its rollbacks and preemptions on tortured, case by case reasoning that starts with the result desired by the likes of AT&T and Comcast – repealing net neutrality, preempting local ownership of streetlight poles – and proceeds to justify it on the basis of nonsensical, one-off legal theories – Internet address lookup as an information service, use of the public right of way as a quitclaim deed – that a corporate lawyer would only use as a last resort.

Both FCC chair Ajit Pai and commissioner Brendan Carr represented big telecoms companies in their past legal careers, and they act like they still do. Federal appeals courts are reviewing claims that their net neutrality and pole preemption decisions are “arbitrary and capricious”. Their San Francisco ruling belongs on that list.