Courts Again Shoot Down FCC For Ignoring The Law, Making Up Stuff

from the ill-communication dept

As the FCC has rushed to kiss up to telecom giants like AT&T and Verizon, it has enjoyed a fairly casual relationship with both the truth and the law. The agency's repeal of net neutrality, for example, was hinged largely on the idea that the modest rules devastated sector investment, something that data repeatedly disproved. Other Pai FCC policies have equally leaned on flimsy and manufactured data plucked directly from the mouths of sector lobbyists. And while this casual relationship to the truth may play well to Pai's allies, just making things up doesn't work quite as well when it comes time to defend these policies in the courts.

Case in point: earlier this year the FCC tried to take away a modest $25 per month broadband stipend for tribal residents (you know, for freedom or whatever), while also banning smaller companies from receiving broadband subsidies (giants like AT&T and Verizon surely appreciated that). But while Pai's office claimed screwing tribal residents would somehow massively spur broadband deployment, the courts shot that ruling down for being "arbitrary and capricious," noting that Pai's FCC failed completely to follow the law or to justify its policy with actual facts.

Fast forward to last week, and the FCC found itself again slapped down for playing fast and loose with factual reality. This time, the courts shot down a sizeable chunk of a recent proposal that gutted most state and local authority over the placement of cellular towers (and so-called "small cells," which are smaller antenna usually affixed to city street lights to extend wireless coverage). While the FCC claimed that doing so would speed up broadband deployment, a coalition of local leaders stated the plan was little more than a giveaway to giants like AT&T and Verizon, who don't like having to deal with pesky things like environmental reviews for cell tower placement.

And (and tell me if you're noticing a trend here), the courts were quick to point out (pdf) that the Pai FCC proposal (again) ignored the law and didn't justify the plan with, you know, facts.

Here's the court's comment on the FCC's attempt to exclude towns and cities from having a say where small cells are placed on city infrastructure, for example:

"The Commission failed to justify its determination that it is not in the public interest to require review of small cell deployments. We therefore grant the petitions in part because the Order’s deregulation of small cells is arbitrary and capricious. The Commission did not adequately address the harms of deregulation or justify its portrayal of those harms as negligible. In light of its mischaracterization of small cells’ footprint, the scale of the deployment it anticipates, the many expedients already in place for low-impact wireless construction, and the Commission’s decades-long history of carefully tailored review, the FCC’s characterization of the Order as consistent with its longstanding policy was not “logical and rational."

That's a polite way of saying the FCC didn't support its arguments with evidence, or adhere to FCC policy or the law. The FCC keeps claiming that rubber stamping AT&T and Verizon's every policy desire will somehow result in a massive boost in sector investment, but again, the data does not support those claims in any capacity:

"But FCC changes haven't had the impact that Carr claims. Another FCC order last year eliminated $2 billion worth of local fees charged to carriers for deployment of small cells on public rights-of-way. Carr had claimed that this decision was needed to boost 5G construction, but Verizon said that the FCC decision did nothing to speed up its deployment. Cities are suing the FCC to overturn that order."

Given the FCC keeps running into the same problem in the courts, all eyes are now on the ongoing lawsuit by 23 state AGs against the FCC for repealing net neutrality. A ruling in that case is expected any day now, and given the FCC's tendency toward fantasy, many sector watchers are left feeling somewhat optimistic the repeal may not hold.

Filed Under: arbitrary and capricious, broadband, cell towers, fcc

The FCC Finally Starts Taking America's Shitty Broadband Maps More Seriously

from the about-time dept

For a country that likes to talk about "being number one" a lot, that's sure not reflected in the United States' broadband networks, or the broadband maps we use to determine which areas lack adequate broadband or competition (resulting in high prices and poor service). Our terrible broadband maps are, of course, a feature not a bug. ISPs have routinely lobbied to kill any efforts to improve data collection and analysis, lest somebody actually realize the telecom market is a broken mono/duopoly whose dysfunction reaches into every aspect of tech.

While these shaky maps have been the norm for several decades, recent, bipartisan pressure by states (upset that they're not getting their share of taxpayer subsidies because we don't actually know where broadband is) has finally forced even the Ajit Pai FCC to take some modest action.

Previously, the form 477 data provided by ISPs let them declare an entire census block "served" with broadband if they provided broadband to just one home in that census block. After years of complaints, that is finally changing with a new FCC rule change that will require that ISPs provide geospatial maps of where they actually offer service for the first time in history:

"We require all fixed providers to submit broadband coverage polygons depicting the areas where they actually have broadband-capable networks and make fixed broadband service available to end-user locations. The filings must reflect the maximum download and upload speeds actually made available in each area, the technology used to provide the service, and a differentiation between residential-only, business-only, or residential-and-business broadband services. Fixed providers in the new collection must submit a broadband coverage polygon for each combination of download speed, upload speed, and technology."

The FCC has suggested it's also going to begin including some crowd-sourced data to confirm accuracy of the data ISPs provide, instead of just blindly trusting the industry at its word. Note that these changes only apply to fixed line broadband providers and not cellular providers, currently under investigation for also routinely lying about their wireless broadband coverage maps.

While the political pressure has finally forced industry-friendly Pai to act, there's still plenty of issues remaining. For example the FCC still refuses to publicize the pricing data ISPs provide the FCC, because the industry claims that data will only benefit competitors. Of course the real reason they don't want that data publicized is it would only further emphasize that Americans pay some of the highest prices for data in the developed world thanks to cable broadband monopolies across huge swaths of the US.

The other problem is one of accountability. Pai has yet to hold giant ISPs accountable on any issue of substance, so whether his FCC would actually punish ISPs that don't comply remains an open question. The entire proposal also shovels off much of the heavy lifting to the Universal Service Administrative Company (USAC), an agency that has never managed an effort of this scale before. So while it's great to see the Pai FCC take steps to improve a longstanding sore spot in American broadband, it might be wise to avoid popping the bubbly until we see if the proposal is correctly applied and enforced.

Filed Under: broadband, fcc

EFF Hits AT&T With Lawsuit Over Sale Of User Location Data

from the ill-communication dept

We've noted a few times now that while Facebook gets a lot of justified heat for its privacy scandals, the stuff going on in the cellular data and app market in regards to location data makes many of Facebook's privacy issues seem like a grade-school picnic. That's something that was pretty well highlighted by a wave of massive scandals showing how your daily location data has long been collected by cellular data companies, then sold to a laundry list of dubious individuals and organizations. Outfits that have repeatedly failed to prevent this data from being abused by everyone from law enforcement to stalkers.

The Ajit Pai FCC has yet to lift a finger or so much as scold the companies for their cavalier treatment of private user data. And while cellular giants like AT&T, Verizon, Sprint, and T-Mobile say they've stopped the practice in light of these scandals, nobody has actually bothered to confirm this fact. Given the billions to be made, it's certainly possible these companies may have just made a few modest changes to what's collected, who they sell this data to, and what they call this collection, but are still engaged in monetizing your daily location habits in some fashion.

Enter the EFF, who this week filed a new class action lawsuit against AT&T (pdf). The suit seeks an injunction to ensure that AT&T can no longer collect and sell this data. The class action represents several California AT&T users who say they were never informed, nor gave consent, for their location data to be used in this fashion:

"Defendants’ practices allow Plaintiffs and other AT&T customers to be tracked and targeted by unknown third parties without their knowledge. AT&T leverages the technology embedded within a customer’s phone and its own network infrastructure to locate its customers without any indication that AT&T is tracking them in order to sell their precise location to third parties for non-911 purposes. Indeed, AT&T’s practices were only publicly exposed after an FBI investigation revealed that a sheriff in Missouri had used carrier location data to stalk a Circuit Court Judge and fellow law enforcement officers without their knowledge or consent and without any legal authority to do so. This highly sensitive data has also been used to harass AT&T customers and bypass the rights afforded by the Fourth Amendment."

The lawsuit also demands that AT&T delete the oceans of data that the carrier has collected and sold over the last decade (a bit tricky given the number of companies this data has long been shared with). It also alleges that AT&T violated the Federal Communications Act by not protecting location data, and California's Unfair Competition Law and the Consumers Legal Remedies Act by misleading consumers as to the sale of this data. The EFF also states that both the cellular carriers and proxy aggregator companies violated the California Constitutional Right to Privacy.

In a statement to Motherboard, AT&T unsurprisingly promised to fight the lawsuit, and again insisted it had already ceased selling location data to third-party aggregators:

"While we haven’t seen this complaint, based on our understanding of what it alleges we will fight it. Location-based services like roadside assistance, fraud protection, and medical device alerts have clear and even life-saving benefits. We only share location data with customer consent. We stopped sharing location data with aggregators after reports of misuse."

Having covered AT&T for the better part of several decades, I can promise you that AT&T's not going to give up this multi-billion dollar market without some form of shenanigans, and that an objective third-party audit confirming AT&T's claims will be essential in putting these scandals to rest.

Filed Under: ajit pai, bounty hunters, fcc, location data, oversight, privacy
Companies: at&t, eff

AT&T Will Now Filter Robocall Spam, If You Pay Them Extra

from the ill-communication dept

When the FCC recently released its "new" robocall plan, consumer groups quickly noted how it wasn't really new, and didn't actually accomplish much of anything. Outside of making it clear that carriers could implement robocall blocking tech by default, most of the plan was just a rehash of past (inadequate) FCC policies. Worse, the plan fixates almost exclusively on "scam" calls (when "legit" telemarketers and debt collectors are the biggest culprits of unwanted calls), and does absolutely nothing to punish carriers that fail to implement either call blocking tech, or call authentication tech (to thwart number "spoofing").

Another criticism of the plan was that it opened the door to letting carriers using the robocall scourge as an excuse to charge consumers even more money for protection that most think should be included free by default. For example Harold Feld, a lawyer for consumer group Public Knowledge, recently predicted just this thing when I spoke to him about the FCC's (not really) new plan back in May:

"Feld said the plan also opens the door to U.S. mobile data customers — who already pay some of the highest prices in the developed world — paying even more money to mobile carriers for tools consumer groups argue should be free and part of existing service by default.

“Pai can’t resist giving carriers more goodies at consumer expense,” Feld says. “While we will need to see the actual language of the proposed order, this appears to allow carriers to have complete discretion to filter calls however they want in the name of blocking robocalls, and then insert a ‘robocall blocking’ line item fee on your bill.”

Last week, AT&T demanded a hefty pat on the back for finally offering consumers robocall blocking tools. Many in the press were happy to praise the company for being "the first major wireless company to automatically block spam calls." But a closer inspection showed that not only was AT&T's new offering not really new, the company was doing exactly what Feld warned about. While AT&T did offer some limited robocall blocking functionality for free, to actually block suspected spam calls consumers need to pay an additional $4 per month:

"Despite the change, customers will still have to manually add undesired phone numbers to block lists or pay $4 a month to send all suspected spam calls to voicemail. That's because this is little more than an expansion of AT&T's Call Protect service, which has a basic free tier and a paid tier with automatic blocking of spam calls.

Phone companies can block robocalls by default starting today, FCC says Call Protect has been available since 2016 but only if customers opted in to it. The difference now is that Call Protect will be added to AT&T phone lines automatically."

Outlets like CNN somehow forgot to mention to readers that actually protecting yourself from annoying spam calls would cost extra. They also failed to note how AT&T has spent the better part of the last decade blaming everybody but themselves for their own failure to do more to police robocalls. Nor did anybody much mention AT&T's long history of turning a blind eye on scams perpetrated on the company's own customers, especially in instances where they've netted a cut of the proceeds.

Most news outlets seem to have bought the FCC and industry claim that the only thing preventing us from ending robocall hell was murky FCC policy regarding the carrier ability to deploy robocall blocking tools by default. In reality, the lion's share of our robocall problems stem from carriers which don't want to pay for the tech, and/or want to turn fixing the problem into yet another profit center. Another major problem is that while the FCC is happy to fixate on easier smaller scam operations, they're not really keen on holding larger and more politically powerful telemarketers and debt collectors, many of which ignore existing law, harass consumers, and use the same tactics as scam outfits, accountable for the exact same behavior.

Filed Under: blocking, fcc, fees, robocalls
Companies: at&t

Sinclair Faces Expanded Probe For Shady Behavior During Tribune Merger

from the shell-games dept

Back when Sinclair was trying to acquire Tribune Broadcasting, you might recall the company was accused of some highly unethical behavior in order to get the deal done. Despite the FCC doing its best to neuter most media consolidation protections to help move the deal forward, the union would have still resulted in the merged company violating media ownership limits and dominating local broadcasting in a huge number of new markets.

To get around those limits, Sinclair allegedly got, uh, creative. Consumer groups accused Sinclair of trying to offload several of its companies to Sinclair-owned shell companies to pretend the deal would remain under the government's ownership cap. The company also tried something similar in trying to offload some stations to friends and other partner companies at highly discounted rates, allowing it to technically not "own" -- but still control -- those stations. Some of the deals involved offloading stations to relatives and friends, for example:

"Under Sinclair’s plan, flagship Tribune station WGN in Chicago would go to a car dealer who is a business associate of a top Sinclair executive, while outlets in Dallas and Houston would be sold to a company formerly controlled by the estate of the executive’s mother."

The efforts were so transparently shady, even the industry-cozy Pai FCC was forced to balk despite having spent the better part of a year trying to help the deal succeed. Ultimately the FCC took administrative steps that effectively killed the deal. Tribune then sued Sinclair for what it called an "unnecessarily aggressive" sales pitch.

And the fun isn't over for Sinclair just yet. The company is also now facing an expanded probe by the FCC into whether the company intentionally misled regulators when it detailed plans to divest stations:

"The so-called “sidecar” deals arranged by Sinclair in order to effect the divestitures involved entities without broadcast TV experience and with business ties to Sinclair. In at least one case, the valuation given for the station was far below the going market rate, raising questions about the process."

When even Ajit Pai thinks a major media and telecom company has gone too far, you know you've screwed up. That said, the FCC's inquiry here may not entirely about a genuine interest in transparency and accountability. FCC Commissioner Jessica Rosenworcel, for example, seemed to imply that one benefit of the FCC conducting a non-transparent investigation is that the real scope of Sinclair's behavior isn't likely to be made public:

As it stands, law prohibits any one broadcaster from reaching more than 38% of U.S. homes, a rule designed to protect local reporting, competition and opinion diversity from monopoly power. The Sinclair deal would have given the company ownership of more than 230 stations, extending its reach to 72% of U.S. households. And while Sinclair wasn't able to consummate this deal, this sort of mindless media consolidation was already a problem, as that viral Deadspin video from last year made pretty clear:

And it's more than this kind of homogenized, consolidation "news" being rather creepy and teetering toward disinformation. There's data to suggest that when you obliterate nuanced local journalism and replace it with monolithic, partisan crap from the likes of Sinclair, you wind up with a more divided and less informed populace. That populace is far less likely to think independently, and far more likely to just double down on partisan viewpoints, which can actually swing elections.

So while the idea of protecting the diversity of local media is often viewed as something that's "partisan" in and of itself, the protection of quality, truly local journalism is something that benefits everybody. It's not clear that's a lesson that has truly gotten through to many Americans, whether this particular merger succeeded or not.

Filed Under: divest, fcc, investigation, merger, ownership, ownership rules, sidecar
Companies: sinclair, tribune

Pai's FCC Crushes Rules That Brought More Broadband Competition To San Francisco

from the look-mom-I'm-helping dept

While many appointments of the Trump administration lack even marginal competence to complete the duties for which they're assigned, the same can't be said of FCC boss Ajit Pai. While Pai's industry-cozy policies may be historically unpopular, the efficiency with which Pai has dismantled telecom consumer protections (and FCC authority in general) can't be denied. Having been a vanilla commissioner for years before being appointed agency head, Pai knows precisely which rules to demolish--and how to obtain the maximum benefit for his core constituents: AT&T, Verizon, Comcast, T-Mobile, Sprint, and Charter Spectrum.

Gutting net neutrality, killing efforts to bring competition to the cable box, even weakening the definition of competition to aid industry incumbents are but a taste of what Pai has been up to the last few years. Many of these efforts are subtle enough to fall under the radar, even if the impact of the decisions are profoundly negative. Case in point: last week, the FCC announced that the agency would soon vote on whether to preempt a San Francisco city ordinance designed to promote broadband competition in apartments, condos, and other multi-unit buildings.

Article 52, first passed in December of 2016, allows ISPs to use existing building wiring to serve customers, even if it's being used by another ISP. The ruling effectively created an "open access" model inside of San Francisco buildings to help drive a bit more broadband competition. Part of the provision prevents landlords from signing exclusivity deals with incumbent ISPs, something that's been a problem (one the FCC refused to seriously address) for decades (there's a great primer on this here by Susan Crawford).

Enter Ajit Pai, whose new proposal would pre-empt San Francisco's ordinance as a favor to industry incumbents who don't like the added competition. And, like so many things Pai does (the "restoring internet freedom" net neutrality repeal comes quickly to mind), his office tried to claim the proposal does the exact opposite of what it actually does:

"Despite its primary goal of eliminating a rule that gives ISPs access to multi-unit buildings, Pai's proposal is titled, "Improving Competitive Broadband Access to Multi-Tenant Environments." In addition to immediately preempting the San Francisco ordinance, the proposal seeks public comment on other "actions the Commission could take to accelerate the deployment of next-generation networks and services within" multi-tenant complexes. Any further rule changes coming from this proceeding likely wouldn't involve sharing of infrastructure, as the Pai plan argues that ISPs "are less likely to invest in deployment" if they know they have to share network components with other providers."

Of course after Pai loves to trot out claims that something will "boost sector investment," even if we've already seen how those promises are just hot air designed to obfuscate the real agenda: protecting incumbent ISP revenues from absolutely any competitive challenge. This shtick where ISPs lobby for "pre-emptive" federal guidelines is also fairly common. The broader rules they lobby for almost always wind up having so many loopholes as to be useless, because the entire point was to pre-empt tougher local or state ordinances lobbyists didn't want. It lets you kill policies off you don't like--without making it obvious that's what you're doing.

Consumer groups, like the EFF, were unsurprisingly unimpressed:

While efforts like this see little to no press coverage (in part because Pai's good at disguising policies as the opposite of what they actually are), the cumulative impact of Pai's tenure will, ultimately, be profound and severe. But because it's going to be felt most by lower income folks already struggling to get and pay for broadband, it will net a fraction of the attention reserved for numerous other tech policy conversations.

Filed Under: ajit pai, competition, fcc, open access, pre-emption, san francisco