House Passes Massive Broadband Bill That Surprisingly Doesn't Suck

from the not-a-chance-in-hell dept

The majority of broadband bills that wind their way through Congress don't actually address the most pressing problem in US telecom: a lack of meaningful broadband competition. Often the bills focus almost exclusively on heavy subsidization of incumbent telecom monopolies, an approach that requires a level of diligence the U.S. has historically not been capable of. The Accessible, Affordable Internet for All Act, which passed the House last week, certainly includes its fair share of subsidization, including $80 billion in fiscal year 2021 to help deploy fiber broadband networks to the underserved parts of the country.

But the bill also contains a number of other improvements most objective experts have long supported, including:

These are, again, all things that actual telecom policy experts (not to be conflated with the army of academics, think tankers, consultants, lobbyists and lawyers often tangentially employed by ISPs to help pretend US broadband isn't a shit show) have been advocating for for years. Many of them -- specifically "dig once" provisions and eliminating protectionist state laws -- generally have wide, bipartisan public support.

But while the bill passed the House with a vote of 233-188, there's not a chance in hell of it passing the Senate or getting Trump's signature. In large part because it runs in stark contrast to the Trump administration's and Pai FCC's approach to telecom policy, which largely involves doling out massive tax cuts, regulatory favors, and other perks to natural monopolies in exchange for massive layoffs and reduced overall sector investment. Then not only pretending that this approach worked wonders, but ignoring the high prices and limited competition that has plagued the US telecom sector for decades.

Like so many other things in tech policy (like net neutrality), actually recognizing a lack of competition in telecom -- and wanting to actually embrace pro-competition policies -- has somehow become a partisan issue, dooming us to inaction and further Comcast and AT&T dominance. While this bill is decent, its backers pushed it as election season fodder with the knowledge it won't pass. Without a dramatic Congressional shakeup, arm in arm with serious efforts to rein in Comcast, AT&T, and Verizon's dominance over state and federal legislatures, it likely never will.

Filed Under: broadband, competition, congress, dig once, fcc, house, lifeline, muni broadband, open access

Court Shoots Down AT&T, Comcast Attempt To Crush Maine Privacy Law

from the have-your-cake-and-eat-it-too dept

Over at our Tech Policy Greenhouse, former FCC official and consumer advocate Gigi Sohn just got done discussing a landmark privacy case in Maine that hasn't been getting enough attention. The short version: back in 2017, the GOP killed some pretty modest FCC broadband privacy rules at the telecom lobby's behest. Despite a lot of whining from telecom giants, those rules weren't particularly onerous -- simply requiring that ISPs be transparent about what data they're collecting and who they're selling access to, while requiring that users opt in to the sharing of more sensitive financial data.

Much like net neutrality, federal lobbying by telecom giants had an unintended impact: namely once the feds showed they were too corrupt and captured to protect consumers, states began passing their own laws (some good, some bad) in order to fill the consumer protection void. On both the privacy and net neutrality fronts, giant ISPs like AT&T and Comcast cried repeatedly about how this created a "discordant and fractured framework of state protections," hoping you'd ignore this was a problem the industry itself created by relentlessly attacking even the most modest federal guidelines.

Last year, Maine passed one such privacy bill modeled after the discarded FCC rules. Again the focus was largely on requiring that ISPs be transparent about what data is collected and who is buying access to it, while requiring that users opt in to the share and sale of access to more sensitive data. It also banned ISPs from charging you more money just to opt out of snoopvertising, something AT&T has already experimented with. The law was not, as telecom giants and their dollar per holler allies have claimed, particularly onerous.

Comcast and AT&T sued anyway in a bid to have the law thrown out before a broader trial. In short, ISP lawyers tried to argue that giving consumers control over their own data violates ISPs' First Amendment right to market goods and services. They also claimed that by passing a privacy law that specifically targeted telecom providers, the law is based on their status as a "speaker" and should be subject to "strict scrutiny" under the First Amendment, which requires a law to be "narrowly tailored to serve a compelling state interest." As Sohn noted, while the case didn't get a lot of attention, the precedent of a telecom industry win here would be terrible for future efforts to pass any kind of intelligent, industry-specific tailored privacy protections whatsoever:

"Should it accept [these arguments], it would set the stage for overturning any and all sector-specific privacy laws as unconstitutional "speaker-based" violations of the First Amendment. If that were the case, then federal and state laws regulating the privacy practices of, among others, hospitals, financial institutions, pharmacies, credit reporting agencies, and libraries would all fall. Maine alone has nearly a dozen sector-specific laws. Now multiply that by 51.

Things didn't quite work out as Comcast and AT&T had hoped. This week, a Maine court shot down AT&T and Comcast's attempt to have Maine's law trashed, ruling (pdf) in favor of Maine Attorney General Aaron Frey, who had argued that Maine's law "regulates a space Congress explicitly left open, and any conflict is a figment of Plaintiffs’ imaginative pleading." In the ruling, Judge Lance Walker noted that Maine's privacy law can't conflict with federal guidelines, because the industry and government worked hand in hard to eliminate said guidelines:

"Congress’s nullification of the ISP Privacy Order, therefore, creates no overarching federal policy, and enacts no scheme with which the Maine Privacy Statute can conflict."

In its net neutrality repeal (which gutted FCC oversight over ISPs), the FCC tried to include a provision banning states from protecting consumers. But courts so far haven't looked kindly upon that effort, noting that federal regulators can't abdicate their consumer protection authority, then tell states what to do. Walker again supported that position here. Walker also didn't seem to think much of the telecom industry's claim that the law violated their First Amendment rights:

"Plaintiffs’ Motion simply fails to clarify how an ill-defined opt-in and opt-out regime would inhibit any protected First Amendment activity; for example, how it might chill them from preparing particular marketing materials for sale to customers. And, they have not begun to bear their burden to show the statute would be unconstitutional in "all of its applications," as they must for a facial challenge."

The case will now proceed to a full trial. But it's worth noting this is just one of several fronts where the telecom industry is lobbying to kill federal consumer protections, then arguing that states are prohibited from doing anything on their own. The industry wants to have its cake and eat it too; it's pushing for a world in which nobody anywhere would be able to hold natural, widely despised monopolies accountable for pretty much anything. Their arguments surrounding free speech are not made in good faith; they're a flimsy attempt to use the First Amendment to effectively eliminate any and all oversight of a sector with a thirty-year history of anti-competitive and often fraudulent behavior.

So far, as we also saw when the net neutrality repeal tried to ban states from protecting consumers, this effort is not going particularly well. But as the courts are increasingly gutted and staffed with dutiful partisan bobbleheads, there's no guarantee that trend persists.

Filed Under: 1st amendment, broadband, fcc, free speech, maine, net neutrality, privacy, state laws, telcos
Companies: at&t, comcast

FCC's Assault On Low-Income Broadband Program Is Making The COVID-19 Crisis Worse

from the pretending-to-care dept

While FCC boss Ajit Pai is best known for ignoring the public and making shit up to dismantle FCC authority over telecom monopolies, his other policies have proven to be less sexy but just as terrible. From neutering plans to improve cable box competition to a wide variety of what are often senseless handouts to the industry's biggest players, most of the administration's policies are driving up costs for the rural Americans and small entrepreneurs he so breathlessly pledges fealty to.

One of Pai's biggest targets has been the FCC's Lifeline program, an effort started by Reagan and expanded by Bush that long enjoyed bipartisan support until Trumpism rolled into town. Lifeline doles out a measly $9.25 per month subsidy that low-income homes can use to help pay a tiny fraction of their wireless, phone, or broadband bills (enrolled participants have to chose one). The FCC, under former FCC boss Tom Wheeler, had voted to expand the service to cover broadband connections, something Pai (ever a champion to the poor) voted down.

Despite endless lip service to the "digital divide," Pai's tenure as boss has included a notable number of efforts to scuttle the Lifeline program that weren't paid much attention to -- until a pandemic came to town. COVID-19 has shone a bright spotlight on the fact that 42 million Americans still can't access broadband (double official FCC estimates), and millions more can't afford service because regulatory capture has helped protect natural monopolies and the resulting lack of competition.

The FCC Lifeline is literally the bare minimum we could be doing to help make broadband more affordable for the poor. Yet despite a pandemic, new data indicates the program has shrunk (by design) notably, and now serves around one fifth of the people it could be helping thanks in part to Pai's cuts:

"Less than a fifth of the 38 million households that qualify for the program are actually enrolled. And despite a recent uptick, enrollment remains down sharply from the Obama era. Starks and other critics lay the low participation rate at the feet of FCC Chairman Ajit Pai, a Republican appointed by President Trump in 2017 to lead the commission."

Pai is, as you might have noticed, a big fan of the idea that if you pull back government oversight of telecom, magic happens (investment spikes, product improves, coverage expands, dogs and cats snuggle up). Except that kind of magical thinking has always been nonsensical in US telecom, given that when you scale back on regulatory oversight, giants like AT&T and Comcast, natural monopolies that they are, simply continue to double down on problematic behavior. That's best exemplified by Pai's promise that killing net neutrality would result in amazing investment, only for us to see investment cuts and mass layoffs.

This kind of ideology is a little harder to push when you're talking about gutting programs intended to help the poor (usually such efforts have to be disguised as "efficiency" and "reform"). Still, Under Chairman Ajit Pai's "leadership," the FCC voted 3-2 in late 2017 to eliminate a $25 additional Lifeline subsidy for low-income native populations on tribal land. As part of Pai's effort he also banned smaller mobile carriers from participating in the Lifeline program, a move opposed by even the larger companies (Verizon, AT&T) that stood to benefit.

Pai's attempt to neuter Lifeline in Tribal areas didn't go so well. The courts ultimately rejected the plan, politely implying in a ruling (pdf) that Pai and his staff not only pulled their justifications completely out of their asses, but failed to do any meaningful research whatsoever into how the cuts would impact poor and tribal communities:

"The Commission's adoption of these two limitations was arbitrary and capricious by not providing a reasoned explanation for its change of policy that is supported by record evidence. In adopting the Tribal Facilities Requirement, the Commission's decision evinces no consideration of the exodus of facilities-based providers from the Tribal Lifeline program. Neither does it point to evidence that banning resellers from the Tribal Lifeline program would promote network buildout.

Nor does it analyze the impact of the facilities requirement on Tribal residents who currently rely on wireless resellers. Further, the Commission ignored that its decision is a fundamental change that adversely affects the access and affordability of service for residents of Tribal lands. Similarly, in adopting the Tribal Rural Limitation, the Commission's decision evinces no consideration of the impact on service access and affordability. Its decision does not examine wireless deployment data related to services to which most Tribal Lifeline recipients subscribe."

Pai's rigid ideology doesn't leave much room for compromise or real-world data. And keep in mind: we're simply talking about a $9.25 subsidy that was created by Ronald Reagan that barely covers even the bullshit fees tacked on to your broadband bill. That should make it abundantly clear why more serious low-income aid programs (or efforts to simply improve broadband competition) are never seriously considered. To folks like Pai, turning the FCC into an AT&T ass kissing bobblehead doll is guaranteed to result in near miraculous outcomes, and any evidence to the contrary is simply ignored.

Filed Under: ajit pai, broadband, covid-19, fcc, lifeline, pandemic

Charter Spectrum Lobbies FCC To Kill Time Warner Cable Merger Conditions

from the regulatory-capture dept

When Charter proposed its $79 billion acquisition of Time Warner Cable and Bright House Networks, former FCC boss Tom Wheeler brought in net neutrality advocate Marvin Ammori to help hammer out conditions that wound up actually being semi-meaningful, a rarity in the telecom space. Under the deal, Charter was banned from imposing usage caps, engaging in interconnection shenanigans with content providers like Netflix, or violating net neutrality (even if the rules themselves were killed) for a period of seven years. Charter was also required to expand broadband to 2 million additional locations.

Granted a lot has happened since those conditions were passed in 2016. That includes the FCC basically folding like wet cardboard under pressure from telecom lobbyists, and not only killing all meaningful net neutrality rules, but gutting its authority over telecom creating massive gaps in basic consumer protections. Obviously feeling unfairly excluded from all the corruption, Charter is now lobbying the FCC to eliminate most of the deal's conditions, claiming that because the streaming video market is just so damn competitive, the conditions have proven themselves unnecessary:

"[I]n the years since the Conditions were imposed, [online video distributors] are even more numerous, more popular, and more formidable today than they were in 2016," states the petition. " Seemingly insatiable consumer demand for content only bolsters their already strong interconnection negotiating positions."

But that misrepresents why those conditions were imposed in the first place: Charter's monopoly over broadband, not video. The restrictions on usage caps, which were to expire in 2023, were imposed because with no competitors for users to flee too, it's very easy to start abusing usage caps to hamper streaming competitors, which is what AT&T is already doing. If you use AT&T's broadband service, AT&T's streaming video service doesn't count against your cap, but using Netflix or a competing streaming platform does. Caps aren't technically necessary to manage congestion. They're glorified price hikes.

The other major restriction involved prohibiting Charter from using its power to drive up rates for streaming competitors in interconnection agreements. If you remember back to 2014, Netflix service began mysteriously slowing down for Verizon users. Consumer groups and companies like Netflix and Layer3 said Verizon was intentionally letting its peering points with partners get congested to force Netflix to pay higher rates simply to connect to the incumbent ISP network. This kind of anti-competitive gamesmanship was also prohibited for a reason, and has nothing to do with how competitive the streaming sector was.

With net neutrality dead, Charter now finds itself in a position where it has to adhere to standards its competitors don't, so it's understandable (from their end of the equation) why it's asking they be lifted. The problem is that none of the underlying justifications for those conditions have changed. In fact they've gotten worse as Charter secures a bigger monopoly over broadband as its telco competitors flee the fixed-line residential broadband market in many areas. Ideally you'd fix this problem with pro-competition policies instead of merger conditions or net neutrality rules, but the US has never had the political courage for such an effort.

The original rules included a provision requested by the FCC that lets them lobby to end the rules two years early, so that's what they're doing. The problem here is that Charter has been so terrible at adhering to many of the conditions, it almost resulted in the company getting kicked out of New York State for lying to regulators, something I'd never seen happen in 20 years of watching the sector. So it's not exactly like Charter should be given a break for good behavior, because its behavior has largely been terrible. The FCC probably will anyway, inevitably leading to higher bills for Charter Spectrum users.

It's another reason why instead of imposing conditions that are either ineffective, watered down, or simply ignored, it makes sense to block these kinds of industry-consolidating deals from the start. Something the Obama administration was urged to do, but ignored. Mindless consolidation has never served the telecom sector well, and you'd be hard pressed to find a single major telecom merger in the last 20 years that delivered even a fraction of its promised "synergies." Or for that matter, regulators from either party who've done a good job holding these companies to their promises years after the fact.

Filed Under: broadband, competition, conditions, fcc, mergers
Companies: charter spectrum, time warner cable

ISPs To Bring Back Usage Caps After Brief Pandemic Hiatus

from the useless-is-as-useless-does dept

While it required some nudging, major US ISPs announced last March they would be suspending their usage caps and overage fees for 90 days as millions of Americans hunkered down to slow the spread of COVID-19. They also struck an entirely voluntary deal with the FCC to not kick users offline during this period for nonpayment due to financial hardship, though given the fecklessness of the captured Trump FCC, many ISPs ignored these promises and saw no penalty for it.

Despite the fact that the pandemic is seeing explosive growth across most of the U.S. and financial hardship for many won't be ending anytime soon, most ISPs will begin imposing usage caps and surcharges again starting in July:

"Major Internet service providers are scheduled to end their quarantine benefits soon, once again subjecting Americans to data caps and removing protections if they are unable to pay their bills."

The FCC, so far, has made no comment on whether the hiatus on disconnections, late fees, and usage caps will be extended.

The problem with usage caps in particular is that they're not technically or financially necessary in the first place. They're little more than price hikes on captive customers in uncompetitive markets, and claims they were necessary due to congestion were debunked long ago. They're not even helpful as a price differentiator, given that speed tiers and business class-tiers already perform that function.

ISPs crowed repeatedly about their networks performing incredibly well despite caps being suspended. Such limits routinely confuse customers, and the limits can be abused to give incumbent ISPs an unfair advantage in the streaming wars. In short, broadband usage caps are bullshit, and should be eliminated permanently.

Extending a hiatus on all late fees and disconnections is a thornier issue, given many smaller ISPs can't afford to carry the debt for customer nonpayment indefinitely. That said, giant ISPs like Comcast and AT&T not only enjoy natural monopolies that result in sky high prices, they have received billions in subsidies, tax breaks, and regulatory favors during the Trump administration. As such the idea that not kicking struggling users offline during an historic crisis for another 3-6 months is some kind of extreme burden for them is laughable. AT&T received a $42 billion windfall from the Trump tax cuts alone.

It's entirely possible that ISPs have to once again buckle to public outrage and announce an extension. Especially given the COVID-19 flare ups occurring in Florida, Texas, and California, and the chain of looming financial headaches (missed rent payments, the end of federal unemployment and stimulus assistance). But it's also possible so much is going on that ISPs will be able to quickly revert to imposing arbitrary, unnecessary, and punitive surcharges thanks to feckless regulators and geographical monopolies, neither of which US "leaders" want to do much about.

Filed Under: competition, covid, fcc, pandemic, usage caps

The Coronavirus Laid Bare Our Empty Lip Service To Fixing The 'Digital Divide'

from the do-not-pass-go,-do-not-collect-$200 dept

FCC boss Ajit Pai likes to repeatedly proclaim that one of his top priorities while chair of the FCC is to "close the digital divide." Pai, who clearly harbors post-FCC political aspirations, can often be found touring the nation's least-connected states proclaiming that he's working tirelessly to shore up broadband connectivity and competition nationwide. More often than not, the junkets involve Pai informing locals that gutting FCC oversight of some of the least competitive, least liked companies in America resulted in near-miraculous outcomes.

Reality continues to have something else to say.

In the wake of COVID-19 quarantines, more attention than ever has been given to the fact that upwards of 41 million Americans (double official FCC estimates) still can't get any type of broadband despite thirty years of subsidization and lip service toward fixing the nation's "digital divide." Millions more can't afford service because feckless regulators and limited competition work in concert to ensure U.S. broadband prices remain some of the highest in the developed world. This was always a problem. It's just more obvious now that citizens in countless COVID-19 hotspots are forced to actually pay attention to it.

While there's a universe of folks paid by the sector to pretend this is all fantasy or hyperbole, at the heart of the problem remains captured regulators who can't be bothered to hold bad actors accountable or adequately map where US broadband is or isn't available. The Reveal has a good piece talking to policy experts who, (once again with feeling) note that the core of the problem is bad FCC leadership and bad data. As in, we literally do not know where broadband is available in the United States or at what speeds and price points it's offered. We pretend we do, but we simply don't:

"No one really knows how many people don’t have high-speed internet access. The government puts the figure at 21 million, but most studies show that’s a drastic undercount – Microsoft estimates it could be as many as half of all Americans. But there is something that most people involved agree on.

“This has been a colossal failure,” said Christopher Ali, an assistant professor in media studies at the University of Virginia, who has spent the last few years writing a book about broadband deployment in the United States. “We’re spending a lot of money. We’re just not spending it efficiently, and we’re not spending it democratically.”

Yet we're still throwing countless billions at broadband providers to fix a problem we don't actually understand. Often we don't understand it by design; lobbyists for the biggest broadband providers have for decades fought against more accurate broadband mapping, knowing full well it will only reveal the sorry state of US broadband availability and competition. And when ISPs are caught time, and time, and time again taking taxpayer subsidies for services only half deployed (if you're lucky), our feckless regulators don't genuinely do much about it:

"The last time the FCC handed out money to build internet infrastructure, in 2015, Frontier Communications and CenturyLink, two of the country’s largest internet service providers, collectively won grants worth $3.2 billion over the next four years – more than $800 million a year between them and more than a third of the program’s $9 billion total.

In January, CenturyLink wrote to the FCC to say it was failing to meet a deadline for deploying networks in 23 of the 33 states in which it was working. In April, having also failed to meet deadlines and facing mountains of debt, Frontier Communications declared bankruptcy."

Instead of ramping up competitive policies and accountability for a broken market, the FCC, sans any legitimate evidence, decided to obliterate FCC authority over telecom at lobbyist behest. And while we have seen some efforts to improve broadband mapping of via the Broadband Data Act (which encourages more verification of data by the FCC and the integration of more crowdsourced and detailed data), any actual improvement remains many years and many more millions away from fruition. While the wireless industry is already hard at work trying to ensure that 5G networks are exempt from many of these improvements.

There's an entire cottage industry of telecom-linked experts whose entire mission is to assure you that none of this is actually happening, or if it is happening, it's only because the United States is so gosh darned big. The reality, however, is quite simple: US broadband is patchy, expensive, uncompetitive, and mediocre because the telecom industry lobbies weak-kneed regulators and lawmakers to keep it that way. It's a truth we go to great, comical lengths to deny, because whether it's unaccountable subsidies, monopoly rents, or campaign contributions, it's simply far more profitable to deny it.

Filed Under: competition, covid-19, digital divide, fcc

FCC Skeptical About Space X Satellite Broadband Claims

from the disrupt-the-undisruptable dept

Ajit Pai's FCC majority is almost never skeptical about the claims made by giant broadband providers. Yet the FCC is expressing doubt that Elon Musk's looming, well-hyped satellite broadband service Starlink will deliver on its promises.

One of the downsides of traditional satellite service isn't just high prices, slow speeds, and usage caps -- it's latency. Traditional broadband delivers somewhere in the range of 20-30ms, whereas the physics of traditional satellite broadband means service usually delivers a 200ms response time; lag that's usually very noticeable. Space X's Starlink satellite service operates using far more satellites in far lower orbits, meaning latency should be dramatically improved. But Ajit Pai's FCC has been expressing doubts that the service will be able to deliver the low latency it's promising the public.

Despite the fact that Starlink could be very helpful in rural markets (its primary target), the FCC originally blocked the company from getting any rural broadband subsidies whatsoever. But last week in an order, the FCC reversed course (pdf), stating that Starlink could receive these funds. But the FCC was quick to express skepticism that Starlink can deliver broad commercial service with latency under 100ms, as it has been claiming:

"Service providers that intend to use low-Earth orbit satellites claim that the latency of their technology is "dictated by the laws of physics" due to the altitude of the satellite's orbit. We remain skeptical that the altitude of a satellite's orbit is the sole determinant of a satellite applicant's ability to meet the Commission's low-latency performance requirements. As commenters have explained, the latency experienced by customers of a specific technology is not merely a matter of the physics of one link in the transmission. Propagation delay in a satellite network does not alone account for latency in other parts of the network such as processing, routing, and transporting traffic to its destination. Short-form applicants seeking to bid as a low-latency provider using low-Earth orbit satellite networks will face a substantial challenge demonstrating to Commission staff that their networks can deliver real-world performance to consumers below the Commission's 100ms low-latency threshold."

One the one hand, I think Pai's skepticism is likely warranted. The satellite broadband sector, including low-Earth orbit satellite, has seen no limit of hype and failure over the last decade. Maybe Musk is the one who finally gets this play right, and maybe he isn't. But the broadband industry has been filled with so much empty hype over the years you really shouldn't buy into the hype of satellite broadband as a serious, major competitor until you see a broad, commercial launch. And even then, much like 5G, we need to see what speeds, pricing, and usage caps look like before declaring it some kind of competitive panacea.

On the other hand, this FCC's history is chock full of examples where it expresses absolutely no skepticism whatsoever at the absurd claims made by companies like AT&T, Verizon, Comcast, and Charter (Spectrum), which all have a vested interest in broadband competitors never seeing the light of day. This is also an FCC boss who has never once expressed the slightest concern about the billions in taxpayer dollars we've thrown at Frontier, AT&T, and Verizon for fiber networks that were never delivered. Seriously, check out the fraudulent nonsense by ISPs like Frontier is West Virginia, then realize the FCC has never made a peep.

Which is to say I think the FCC is making these claims in good faith, but the agency engaged in enough bad faith shenanigans the last three years, it's hard to say for sure. When you pander ideologically to industry like this FCC has done (repealing net neutrality, fighting privacy rules, fighting states' rights to enforce consumer protection), you start to lose the benefit of the doubt. Having watched this industry for 20 years, I certainly wouldn't be shocked to see regulatory barriers suddenly spring up in Starlink's path that have been lobbied for by the likes of AT&T, Verizon, and Comcast.

Either way, the potential exists for Starlink (and other companies, like Amazon), to finally disrupt one of the least liked industries in America. Assuming the technology works well. And assuming regulators don't foul it up. And assuming the company doesn't get bored with the high costs and hard work required to do battle with legacy broadband providers... you know, like Google did.

Filed Under: ajit pai, broadband, competition, fcc, low earth orbit, satellite, starlink
Companies: space x