Telecom Lobbyists Crushed San Francisco's Quest For Better Broadband

from the dysfunction-junction dept

While cities like Seattle and San Francisco are known as technology and innovation hubs, that hasn't historically been reflected by the broadband markets in those cities. Like everywhere else, the two cities suffer from little real broadband competition, with incumbent monopolies like Comcast leaving consumers and businesses with a dearth of options for quality, lower cost broadband. And, like the rest of America, as companies like AT&T and Verizon shift their ambitions to online advertising, they're refusing to upgrade aging DSL lines, leaving cable with an even more potent monopoly that 5G wireless isn't likely to fix.

Faced with decades of sub-par service, "tech hubs" like Seattle and San Francisco have pondered building their own broadband networks. More than 750 towns and cities have pursued the option, which is why ISPs like AT&T and Comcast have lobbied for laws in nearly two-dozen states attempting to ban or hamstring such efforts. It's not hard to see why. Chatanooga's Publicly-owned ISP EPB was ranked last year as the best ISP in the nation, and Harvard studies have shown that such community networks tend to offer better service at lower and more transparent prices than their private-sector counterparts.

If any city should be able to pursue and fund a public open access fiber network, you'd think it would be tech-obsessed and hugely wealthy San Francisco. That was the thinking of Mark Farrell when he took his seat on San Francisco’s Board of Supervisors in 2010. He spent several years trying to convince his fellow city residents that an open-access, wholesale fiber network (where private ISPs come in and compete in layers on top) would improve life (and business) immeasurably in the city. But as with so many efforts, his plan ran face first into a buzzsaw of telecom industry lobbying:

"In fact, angel investor Ron Conway, one of San Francisco techdom’s best-connected figures, contributed $15,000 to two supervisors who then argued against the proposal, according to reporting by 48 Hills and the San Francisco Chronicle. SF.citi, a tech-heavy industry group, that included Conway and two AT&T executives on its board, lobbied hard against Farrell. And Comcast lobbyist Scott Adams made 16 visits to City Hall between late 2014 and 2017 to discuss matters relating to broadband deployment, according to records at San Francisco’s Ethics Commission.

“They came up with every excuse in the book; from large costs to the fact that their companies could provide that low-income access,” Farrell says. “If it had come to a vote we would have won.” But it never did come to a vote, and once Farrell left office, the project was quietly shelved.

The high costs of such deployments often scare voters away, but San Francisco's plan never even got that far. And while the high costs of such deployments are certainly something to consider, few realize that we're already doling out billions to entrenched telecom operators who do little to nothing of public benefit in the first place. AT&T, for example, just received $20 billion (plus $3 billion annually in perpetuity) from the Trump tax cuts, and its response so far has been to fire employees. Taxpayers have thrown incalculable billions at these providers for decades in exchange for broadband networks only sparsely deployed.

In short the public is already paying an arm and a leg for broadband both in their monthly bills and in the tax breaks and subsidies thrown at giants like Comcast, Verizon, and AT&T for doing little to nothing of substantive benefit. If even half of those resources had gone to, say, lobbying reform or well-crafted community broadband efforts, data suggests these cities would already be reaping the benefits of better, cheaper, and faster broadband.

Filed Under: broadband, isp, san francisco

Russia Expands Site Blocking To VPNs

from the watch-out dept

Over the last few years, Russia has been one of the most aggressive countries in using claims of copyright infringement to push for full site blocking at the ISP level. Of course, that has resulted in tens of thousands of innocent sites getting blocked (collateral damage!), not to mention a corruption scandal and... no meaningful decrease in piracy. Apparently, the answer for the Russians: head deeper into the infrastructure to push site blocking even further.

Now, apparently, beyond just demanding ISPs engage in massive site blocking, various VPNs have been ordered to start blocking full sites as well.

During the past few days, telecoms watch Roscomnadzor says it sent compliance notifications to 10 major VPN services with servers inside Russia – NordVPN, ExpressVPN, TorGuard, IPVanish, VPN Unlimited, VyprVPN, Kaspersky Secure Connection, HideMyAss!, Hola VPN, and OpenVPN.

The government agency is demanding that the affected services begin interfacing with the FGIS database, blocking the sites listed within. Several other local companies – search giant Yandex, Sputnik, Mail.ru, and Rambler – are already connected to the database and filtering as required.

You can understand how this came about: as site blocking gets more popular, more people sign up for VPNs that allow them to get around local censorship and access content as before. However, it appears the Russians are trying to stop that as well. While not quite as bad as when China started banning VPNs completely, this still represents quite a threat to securely surfing the internet.

I was actually in Moscow a few years ago, very briefly, to speak on a panel, and I came armed with three separate VPN services to (hopefully?) stay safe and be able to tunnel out of the Russian internet. That was well before the big crackdown, however, and it must be more and more difficult to use the internet safely there. We've also discussed Russia's supposed plans to test disconnecting from the internet -- and it might not need to do much if it continues to reach deeper and deeper into the internet ecosystem to make it harder and harder to use the internet safely and securely.

And, of course, as Professor Annemarie Bridy notes, none of this is really about copyright infringement. This is entirely about authoritarian control of the internet and censorship:

Indeed, remember a few years back when the Russian government used questionable claims of copyright infringement to intimidate government critics? The US's infatuation with copyright has handed a tool of out and out censorship to authoritarian leaders, who can censor freely while insisting they're doing so to help American copyright corporate interests.

Filed Under: internet freedom, isp, russia, site blocking, vpn

Telecom Lobby Suddenly Pretends To Care About Accurate Broadband Maps

from the ill-communication 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.

If you want to see our terrible broadband maps at work, you need only go visit the FCC's $350+ million broadband availability map, which is based on the Form 477 data collected from ISPs. If you plug in your address, you'll find that not only does the FCC not include prices (at industry behest), the map hallucinates speed and ISP availability at most U.S. addresses. Part of the problem is that the FCC declares an entire region "served" with broadband if just one home in a census block has service. Again, ISPs fight efforts to reform this in a bid to protect the status quo.

Curiously, USTelecom (which is a policy and lobbying vessel for AT&T and Verizon) last week launched a new PR campaign in which they now profess to be immensely troubled by the country's terrible broadband maps. As such, in an editorial over at CNET, the group stated it's now "leading the charge" in better broadband mapping via several new trials it's conducting in Missouri and Virginia:

"USTelecom is leading the charge on a new, more precise, approach to broadband reporting and mapping. We have proposed to Congress and regulatory agencies a method to create a public-private partnership to map America's broadband infrastructure so policymakers and providers can better target scarce funding to communities with limited or no service options."

Again, one would be inclined to actually believe that if they hadn't watched this same organization routinely try to scuttle better broadband mapping efforts or deny the industry's competition and availability issues for the better part of the last two decades.

The plan itself is rather vague. In it, USTelecom proclaims that it will use "multiple sources of address, building, and parcel data" to create "a broadband serviceable location fabric" to better identify where broadband is available, and where it isn’t. But consumer group analysts who've fought for years for better mapping told me they believe the real goal of USTelecom's latest gambit isn't really better data, it's preventing outside researchers and journalists from confirming the accuracy of said data:

"The voluntary, AT&T and Verizon-led USTelecom idea has the potential to improve the accuracy of the FCC’s data, but it appears this methodology will produce far less transparent data that cannot be systematically verified and utilized by researchers,” (Derek) Turner said. “We are suspicious of the motivations of USTelecom, because their approach of using ISP-supplied address-level data is an idea its members have vigorously opposed since the FCC began collecting data."

The telecom lobby (and many industry lobbyists) enjoy this tactic where as soon as the groundswell of support reaches a certain fevered pitch, they'll push their own solution. Not because they really want to fix the problem, but because they want to pre-empt better, more transparent solutions they won't like. It's a tactic that many telecom-loyal politicians have been attempting with fake net neutrality laws designed to do one thing: pre-empt tougher, better state or federal proposals.

With $4.5 billion in new broadband subsidies on the line, politicians have ramped up the pressure on the FCC to fix the problem before doling out yet more taxpayer money. The Telecom industry, concerned about data that can further showcase telecom sector market failure, clearly hope to beat these efforts to the punch, with numerous caveats and restrictions. When I pressed USTelecom as to whether they'd support making this new data transparent to journalists, researchers, and the public, the group wouldn't answer, and would only punt to the Ajit Pai FCC:

"This is an industry-funded pilot program that the consortium will share first with the FCC when complete,” a USTelecom spokesperson said. “If the FCC adopts this new approach on a national basis, they will determine data availability."

Granted if you've been paying attention at home, you'd know by now that the industry-friendly FCC's reputation for data transparency is not what you'd call stellar. So if the telecom lobby genuinely wants better broadband mapping data, that's great. But if the entire purpose of the plan is to make it harder than ever to independently confirm the industry's speed and availability claims -- or two pre-empt better plans crafted via a coalition of objective experts -- it could actually just making the country's broadband mapping problem worse.

Filed Under: broadband, fcc, isp
Companies: at&t, ustelecom, verizon

FCC Accused Of Burying Data Highlighting Sorry State Of US Broadband

from the transparency! dept

Back in 2011 the FCC launched something called the Measuring American Broadband program. It was revolutionary in the fact that for the first time, the FCC refused to simply take ISPs at their word in terms of the speed and connection quality of their broadband offerings. Instead, the FCC hired UK firm Samknows to embed custom-firmware modified routers in the homes of thousands of real world broadband volunteers, providing insight into the real state of US broadband network performance, not the rosy picture of US broadband telecom industry lobbyists like to paint.

Not surprisingly, actually using real world data to inform policy paid dividends. The FCC's first report (pdf) in 2011 showed that some ISPs, like New York's Cablevision, were delivering just 50% of the bandwidth they advertised during peak usage hours. Cablevision didn't much like being called out in this way, and by the next report (pdf) in 2012 was shown to have fixed its problems, now offering actually more bandwidth than they had previously advertised (120%). It was, in the absence of more competition, a novel way to nudge ISPs toward doing the right thing.

Each year like clockwork these reports were released to the public. Until last year, that is, when then new FCC boss Ajit Pai simply refused to release the report at all, despite the fact that taxpayer dollars were still funding it and volunteers were still participating.

On Monday of this week, Jon Brodkin at Ars Technica wrote an excellent piece noting how Pai's office not only didn't release the report at all last year, but had refused to answer months of press inquiries as to why, and whether the FCC would release its data this year. He also noted how the Pai FCC had been tap-dancing around numerous FOIA requests for more detail for months (the FCC's facing numerous lawsuits for ignoring FOIA requests on a litany of subjects):

"Because of Pai's office's silence, we filed a Freedom of Information Act (FoIA) request on August 13 for internal emails about the Measuring Broadband America program and for broadband speed measurement data since January 2017. By law, the FCC and other federal agencies have 20 business days to respond to public records requests.

The FCC responded to us but denied our request for "expedited processing." We had argued that expedited processing was warranted because the broadband measuring data is out of date, depriving American consumers of crucial information when they purchase broadband access. The FCC disagreed, telling Ars, "we are not persuaded that the records you request are so urgent that our normal process will not provide them in a timely manner."

Despite ignoring reporters for months, the day after Ars Technica wrote its story, Ajit Pai penned this blog post stating the FCC would eventually release the data, saying that going forward it would be buried within an appendix within other reports mandated by Congress. Pai made no reference to the Ars piece, and insisted this was being done because issuing separate reports was too much of a hassle:

"The FCC has long been required by law to submit a variety of reports to Congress. Each of these reports used to be issued as separate documents and at different times, making it hard for elected officials and the public to track everything down. To streamline these reports into a single document providing a comprehensive evaluation of the state of the communications marketplace in the United States, Congress, in the RAY BAUM’S Act of 2018, required the FCC to craft every two years what we are calling our Communications Marketplace Report. The draft report I’m circulating for my colleagues’ consideration consolidates many of the reports that the Commission had been previously required to produce. For the first time, the Report places essential information about mobile wireless, video, audio, wireline broadband, voice telephony, satellite, broadband deployment, and international broadband all in one place."

In short, Pai is effectively trying to blame Congress for the disappearing of reports naming and shaming under-performing ISPs. But there's nothing in the Ray Baum's act that prohibits the FCC from releasing data from the Measuring American Broadband in standalone fashion. In fact, releasing a standalone report that specifically publicized under-performing ISPs was the entire point. Given the Pai FCC's allergy to factual data, skepticism seemed justified.

While Pai's FCC wouldn't talk to Brodkin (or myself) about what was going on, someone at the FCC did tell CNET (whose coverage of the telcom industry tends to be... gentler) that the report would indeed be released... in the appendix of a much larger report... the day before Thanksgiving (when you can be sure few would actually read it or any news stories covering it):

"When asked by CNET about the criticisms, an agency spokesman said only that the data collected on broadband speed would be part of a report released Wednesday."

Of course the day before Thanksgiving would be the best time to release a report you don't want anybody to actually see. But oddly, CNET then subsequently scrapped that entire story without issuing any corrections, replacing it with this story at the same URL now claiming the data should be released in December. Maybe (the web archive has the old version of the article here).

Brodkin, for one, was flummoxed by the months he spent trying to get the FCC to explain, only to have it provide (apparently) incorrect information to CNET:

And when he circled back around to SamKnows, Brodkin was told that no, the data likely wouldn't be released in this report, but might actually show up in December:

Of course "approved" doesn't mean actually released. Insiders at at least one major cable operator tell me ISPs were given an embargoed copy of this report weeks ago, and it does actually include data from the Measuring American Broadband program. But whether the public will receive access to this data isn't clear. And even if it does, by the time this report is released buried in a larger report, most people will be in a tryptophan-induced holiday coma.

If you've been playing along at home, the reason the Pai FCC didn't want to talk about the program (or release data that might shame its BFFs in the broadband industry) shouldn't be too hard to ferret out. After all, that data might just contradict the longstanding (and quite obviously false) Pai claim that demolishing most oversight of historically-predatory telecom monopolies magically results in better, faster, cheaper broadband. While Pai's office can insist they were just engaged in "improved efficiencies," it should be interesting to see if the emails requested via FOIA (if they're ever actually released) have a different story to tell.

Filed Under: ajit pai, broadband, fcc, isp

Court Again Rules That Cable Giants Can't Weaponize The First Amendment

from the no-luck,-try-again dept

Over the last few years, telecom giants have increasingly been trying to claim that pretty much any effort to hold them accountable for their terrible service (or anything else) is a violation of their First Amendment rights. Historically that hasn't gone so well. For example, courts generally laughed off ISP lawyer claims that net neutrality violated their free speech rights, quite correctly highlighting that ISPs are simply conduits to information, not acting as editors of available speech through their blocking or filtering of available information.

Charter Spectrum, the nation's second biggest cable operator, has been trying to embrace this argument a lot lately as it fights off state lawsuits for terrible service. It recently tried to use the First Amendment card again in a legal battle with Byron Allen's Entertainment Studios Networks (ESN), which recently accused Charter of violating the Civil Rights Act of 1866 by refusing to carry TV channels run by the African-American-owned ESN.

While Charter tried to have the suit dismissed by claiming that the First Amendment prohibits such claims because an ISP enjoys "editorial discretion," the ruling (pdf) by the U.S. Court of Appeals for the Ninth Circuit didn't agree. The court noted that while ISPs and cable companies do enjoy some First Amendment protection, it doesn't apply here, just like it didn't apply in the net neutrality fight:

"As part of its defense, Charter had told the court that by choosing which channels to carry, the company was engaging in a form of editorial discretion protected by the First Amendment. Therefore, it said, the court would have to use a stricter standard to evaluate Entertainment Studios’ claim of a legal violation — a standard that might result in the claim being rejected.

The Ninth Circuit said otherwise, saying that just because Charter engages in corporate speech when it selects which channels to carry does not “automatically” require the court to use the tougher standard.

As a result, the court is letting the case move forward. For its part, ESN's discrimination complaint alleges that its complaint is based on more than just having its channel withheld from the company's cable lineup:

"The opinion on Charter’s motion to dismiss also marks a victory for the 25-year-old programming firm founded by comedian Byron Allen, which bought the Weather Channel in March and accused Charter executives in court of hurling racist insults at Allen and other black Americans in numerous encounters. In one alleged instance, Charter chief executive Tom Rutledge called Allen, who is black, “boy” at an industry conference and advised him to change his behavior, according to court documents. In another alleged example, the court said, Charter’s senior executive in charge of programming, Allan Singer, approached a group of black protesters outside Charter’s offices to tell them to “get off of welfare."

Consumer groups like Public Knowledge were quick to applaud the ruling, happy to see another effort to "weaponize" the First Amendment shot down. The district court will now proceed to determining whether Charter did engage in racially discriminatory conduct.

"Holding us accountable for absolutely anything violates our free speech" rights was historically something telecom lobbyists often just throw at a wall in a bid to see if it sticks. But these efforts have escalated in the last few years. For example FCC staffers under Ajit Pai, at this point nearly indistinguishable from big telecom lobbying efforts, have even tried to claim that community-run broadband (an organic, voter-approved response to terrible service) is a threat to free speech, a charge there's absolutely zero supporting evidence for.

It's a legal argument giant ISPs have also embraced more recently in large part because they hope that new Justice Brett Kavanaugh, who bought into some of these arguments during previous net neutrality battles, will ultimately be a deciding vote should many of these battles wind their way to the Supreme Court. So far, however, these efforts haven't worked out all that well, and while that's not likely to change when the net neutrality court fight kicks off next February, it could be an important issue should that fight make its way to the highest court in the land.

Filed Under: cable, first amendment, isp, ninth circuit, telecom
Companies: charter spectrum, esn

Public Attention Forces Facebook To Retreat From Anti-Privacy Alliance With ISPs In California

from the now-that-you're-watching... dept

Silicon Valley companies have historically not seen eye to eye with giant ISPs, as we saw during the early years of the net neutrality debate. But Google and Facebook recently put aside their differences and joined forces with Comcast, AT&T and Verizon to successfully kill an attempt to impose some fairly-modest privacy standards in California. California's proposal closely mirrored the FCC privacy rules ISPs lobbied the GOP and Trump administration to kill last year. Those rules simply required that companies clearly outline what data is collected and sold, and provide working opt out tools.

As the EFF noted at the time, sidelining this proposed law required a lot of lying on the behalf of Facebook and Comcast, including claims that the modest protections would harm children, prevent law enforcement from doing its job (not true), reduce consumer security, increase internet popups (what?) and even somehow "embolden extremism." It's pretty clear lobbyists didn't have much problem exploiting the (then) recent tragedy in Charlottesville to their tactical advantage, notes the EFF:

"One of the most offensive aspects of the misinformation campaign was the claim that pretending to restore our privacy rights, which have been on the books for communications providers for years, would help extremism. Here is the excerpt from an anonymous and fact-free document the industry put directly into the hands of state senators to stall the bill:

The bill would bar ISPs from sharing potentially identifiable information with law enforcement in many circumstances. For example, a threat to conduct a terror attack could not be shared (unless it was to protect the ISP, its users, or other ISPs from fraudulent, abusive, or unlawful use of the ISP's service). AND the bill instructs that all such exceptions are to be construed narrowly.

In addition to national security scaremongering, the industry put out a second document that attempted to play off fears emerging from the recent Charlottesville attack by white supremacists:

"This would mean that ISPs who inadvertently learned of a rightwing extremist or other violent threat to the public at large could not share that information with law enforcement without customer approval. Even IP address of bad actor [sic] could not be shared."

While ISPs, Google and Facebook successfully managed to stall that bill, a new citizen petition has emerged in its shadow. Dubbed the California Privacy Act, the proposal again focuses largely on transparency, requiring that ISPs and content companies alike disclose precisely what data is being collected and sold, while providing working opt out tools. This new proposal should show up as a ballot initiative in November. In some ways it goes further than the earlier proposal, but in other ways it's less comprehensive ("The ISP privacy bill regulates use, sale, and disclosure of cable and telephone. The initiative goes at sale and disclosure of everyone (tech and ISP) but leaves use untouched," the EFF tells me).

Needless to say, with everybody suddenly at least pretending to care about privacy for a little while in the wake of the Cambridge Analytica scandal and Zuckerberg's testimony before Congress, Facebook was forced to quietly retreat from its opposition to the measure:

Except again, Facebook has consistently fought reasonable privacy measures in California. Backers of the proposal were quick to issue a statement applauding Facebook's retreat, while noting that AT&T, Verizon, Comcast and Google continue to battle the proposal:

"We believe that all consumers deserve the basic rights outlined in our initiative. We call on the remaining corporations who have contributed to the Super PAC opposing this common-sense measure to drop their opposition. Google, AT&T, Verizon & Comcast: if you are not selling our personal information, why are you spending a million dollars to oppose us? Voters overwhelmingly support this measure, and protecting consumers is not only a good business decision, but the right thing to do. It’s time to stop business as usual and to step up and do the right thing."

Of course we'll see if Facebook's opposition persists once the spotlight fades. Facebook had already donated $200,000 to the "Committee to Protect California Jobs" in the hopes of keeping the initiative off the ballot, with matching support from AT&T, Google, Comcast and Verizon. That committee remains very much active in its opposition:

"Steven Maviglio, the spokesperson for the Committee to Protect California Jobs, contends that Facebook still considers the proposed bill to be “flawed.” In an emailed statement, he told Gizmodo, “It is unsurprising that proponents of the so-called ‘California Consumer Privacy Act’ are looking to distract from their deeply flawed initiative that will do enormous harm to the California economy while not protecting anyone’s privacy."

Obviously legislation will play at least some role in addressing the deep well of privacy dysfunction that ranges from your broadband connection to your IOT gadgets. It should be fairly apparent these industry giants aren't likely to support even the most modest of proposals without a fight. An informed and empowered consumer is simply more likely to opt out of data monetization schemes, reducing overall revenues. And as we stumble forward, many of these companies are already proposing their own bogus legislative "solutions" that could make things worse.

People spent much of this week pearl clutching over privacy, but it's a very small fraction of those folks that actually pay attention to the nuts and bolts policy efforts to actually do something about it, especially on the state level. That's going to need to change. Privacy legislation is coming, and the public can either choose to be a part of its construction, or cede that responsibility to industry giants intent on crafting incomplete or potentially harmful "solutions."

Filed Under: isp
Companies: facebook

ACLU: If Americans Want Privacy & Net Neutrality, They Should Build Their Own Broadband Networks

from the breaking-the-logjam dept

More than 750 towns and cities across the United States have been forced to build their own networks if they want anything close to next-generation broadband. These towns and cities aren't doing this because it's fun, they're doing it as an organic response to market failure, and the growing cable monopoly that fuels high prices, poor coverage, and abysmal customer service. By and large the incumbent response to this shift hasn't been to offer better, cheaper service, but to literally write and buy protectionist laws in more than 21 states prohibiting locals from making their own decisions.

ISPs also like to demonize these efforts as automatic taxpayer boondoggles, which not only isn't true (municipal broadband, like any other business plan, can be well or poorly designed), but ignores the fact that these towns and cities wouldn't be getting into the broadband business if existing service wasn't so expensive and shitty across wide swaths of America.

Not too surprisingly, the Trump administration's decision to protect these disliked monopolies by killing net neutrality and broadband privacy protections is only driving more interest in such alternative solutions. For example, the ACLU has issued a new report stating that if cities want privacy and a neutral internet, they should join the trend of building their own networks:

"The internet has become a crucial utility, yet unlike water and electricity, quality broadband service in the U.S. is far from universal. Twenty-four million Americans don’t have access to high-speed internet at home, either because it’s not available or too expensive. Lack of access to decent broadband is especially bad in low-income or rural areas and communities of color. In general, there’s very little competition in this market, with most people having only one or two choices of an internet service provider. As a result, internet service in the United States is slow compared to many other countries.

Hundreds of cities, towns, and counties around the country have already turned to community broadband, often providing faster and cheaper service than for-profit telecoms. And, municipally-owned broadband providers can honor net neutrality and privacy values, regardless of what the FCC does or doesn’t do. With these public systems, communities can ensure that internet service is provided in an equitable way.

Except thanks to Comcast, AT&T, Verizon, Charter and CenturyLink's lobbying stranglehold over our leaders, terrible state laws prohibit many locals from being able to even consider the option. This protectionism has been such a problem, companies like AT&T have even tried to sneak anti-community broadband language into unrelated traffic bills when nobody was looking. In some cases, these laws go so far as to ban towns and cities from even striking public/private partnerships with the likes of Google Fiber or Tucows' Ting.

The ACLU advises residents of states that have such restrictions (you can find a complete map here) should, first and foremost, fight to reverse such protectionist measures:

"Unfortunately, telecom lobbyists have convinced at least 21 state legislatures to enact restrictions or outright bans on the ability of municipalities in those states to create their own broadband service — thereby leaving people no choice but to utilize the commercial services that are often slow, unjustifiably expensive, and now poisoned by their lack of protections for privacy and network neutrality...Residents of those states should start by demanding that their state legislators reverse those laws.

Like net neutrality, ISP lobbyists have had great success framing municipal broadband as a "partisan" fight in order to sow dissent and prevent anybody from disrupting their cozy status quo. But wanting better broadband (or wanting a say over tax spending and infrastructure) isn't a partisan concept, and by and large municipal broadband networks are most commonly built in conservative areas. Our collective disdain of Comcast appears to be one of just a few things that easily bridges our deep partisan divides.

Still, after decades of disinformation on this front, ISPs have been very effective in getting people to believe that building your own broadband networks is a vile socialist cabal that always ends in wasted taxpayer money and tears. But again, these towns and cities wouldn't even be considering this if they were happy with incumbent broadband options. These attempts to demonize local broadband networks successfully obfuscate the fact that incumbent ISPs like Comcast are dictating both state and federal policies that are only making our broadband connectivity and competition problems worse.

With ISP lobbyists only making already frustrated towns and cities angrier with the net neutrality repeal and attack on consumer privacy laws, they've only guaranteed that more towns and cities than ever before will be pursuing the roll-your-own option when it comes to broadband. And it's only a matter of time before people catch on and these state-level bans start to be dismantled. If ISPs like Comcast and AT&T don't like it, they have an obvious solution: actually start competing and provide better, faster, cheaper service.

Filed Under: aclu, broadband, isp

RIAA Gets To Move Forward In Case That Tries To Force ISPs To Help Copyright Trolls

from the this-stuff-is-important dept

Back in February, we wrote about the details of the appeals court ruling in BMG v. Cox, a case that looked at whether or not internet access providers are required to terminate users accused of repeat infringement. The case was really a proxy for copyright trolling operation Rightscorp, which floods ISPs with claims of infringement tied to "settlement" offers that it wants the ISPs to pass on to end users. As discovery during the Cox case revealed, Rightscorp engages in incredibly sketchy practices to pressure people into paying up (such as telling them that they need to take their computers to the local police station for a search to prove they're not infringing).

However, due to a bunch of weird details in that case -- including a judge who made it clear he didn't think the internet was such a big deal -- Cox lost that case, and then again on appeal. The good thing in the appeal, however, was that the opinion mostly limited its decision to the specific facts in Cox's case, which included the fact that it had a "repeat infringer policy" but it didn't follow its own policy. That's really what sunk Cox. The court noted that an ISP should have wide latitude in designing its own repeat infringer policy, it just had to then follow its own policy. And Cox didn't.

While that case was going on, a second similar case was filed, this time by Universal Music Group against Grande Communications. Back in February, the magistrate judge on that case made recommendations to allow the case to move forward, though throwing out some of the claims. As TorrentFreak recently pointed out, the Article III judge in the case has accepted the recommendations of the magistrate, which you can see here.

Neither UMG nor Grande Communications are probably all that happy with the results (same probably goes for Rightscorp.), though UMG is probably happy that the case is at least moving forward on claims of contributory infringement. Grande's management company, Patriot Media Consulting, is dropped from the case, and the vicarious infringement claims are dropped as well. People often confuse "vicarious" infringement and "contributory" infringement as they're both forms of secondary liability for service providers. Vicarious infringement, though, requires two specific prongs: the right and ability to supervise or control the infringing activity, and the direct financial benefit from that activity. In other words, you need to be pretty damn involved and making money directly off of that specific infringement. In this case, the magistrate judge realized that clearly is not the case with an ISP:

The closest that the Complaint comes to addressing this issue is the allegation that “the availability of music —and particularly UMG’s music— acts as a powerful draw for user’s of Grande’s service, who use that service to download infringing music files using BitTorrent protocols.” ... This is not sufficient to show the “direct financial interest” necessary to support a vicarious infringement claim. There are no allegations that Grande’s actions in failing to adequately police their infringing subscribers is a draw to subscribers to purchase its services, so that they can then use those services to infringe on UMG’s (and others’) copyrights. Instead UMG only alleges that the existence of music and the BitTorrent protocol is the draw. But that would impose liability on every ISP, as the music at issue is available on the Internet generally, as is the BitTorrent protocol, and is not something exclusively available through Grande’s services. Accordingly, the Court finds that UMG has failed to plead facts showing that Grande receives a direct financial benefit from its subscribers’ infringing conduct, and that UMG’s vicarious copyright infringement claim should be dismissed for failure to state a claim.

Contributory infringement, on the other hand, is the concept that comes mainly out of the famous Grokster ruling, and basically says that if the service provider is inducing infringement, then they can also be liable for contributory infringement. Grande tried to get around this by using the Sony Betamax standard, noting that there were substantial non-infringing uses of its service, and thus it shouldn't be held liable for some infringement that does occur. The magistrate judge doesn't seem entirely won over by Universal's argument, but suggests at the motion to dismiss stage -- at which point the judge is required to treat everything the plaintiff claims as true -- there's enough in the pleadings to allow the case to move forward:

The Court acknowledges that this is not yet a well-defined area of the law, and that there are good arguments on both sides of this issue. However, at this point in the case, the Court is persuaded that UMG has pled a plausible claim of secondary infringement based on Grande’s alleged failure to act when presented with evidence of ongoing, pervasive infringement by its subscribers.

That's not exactly a strong endorsement, and if I were Universal Music's lawyers, I'd be worried about how things will go at the next stage (most likely summary judgment). Grande now gets to make the case that it did not "induce" infringement on its network, and merely failing to do what Rightscorp demands hardly reaches the level of inducement. To me, that's a pretty strong argument, but judges in copyright cases often seem to lose perspective when it comes to any kind of infringement. This will be an important case to pay attention to.

As a separate note, I'm a little surprised that the Supreme Court's Packingham decision, saying that the government can't kick people off the internet, didn't come up yet in this case. I imagine it will at some later date.

Filed Under: copyright, copyright trolls, isp, riaa

Wall Street Merger Mania Is Driving Us Toward One Single, Horrible ISP - Probably Named Comcast

from the merge-ALL-the-things dept

Many consumers are still reeling from a Charter, Bright House Networks and Time Warner Cable merger that left users with slower speeds, worse service, and higher prices. Other broadband consumers are still struggling with a bungled Frontier acquisition of Verizon assets that left users with prolonged outages and even worse customer service than the shitshow they already enjoyed. As we've seen for decades, this kind of mindless consolidation traditionally only benefits the companies involved, particularly in a market where real competition is in short supply.

This growth for growth's sake is one of the major reasons Comcast -- and its horrible customer service (which didn't scale with the company's expansion because that would have cost money) -- exists. And Wall Street's relentless thirst for growth at all costs is a major reason these companies can't simply focus on being the best "dumb pipes" possible, instead focusing their attentions on expanding into markets they have little expertise in (see Verizon's ingenious plan to hoover up failed 90s brands and pander to Millennials). When they can't succeed because they're out of their depth, they try to tilt the playing field (killing net neutrality).

There's oodles of history lessons here, and there's every indication we intend to learn nothing from them. With the ink barely dry on Charter's troubled deal, and the Trump administration signaling that no merger is too big or too absurd, Wall Street analysts have been positively giddy this year pondering megamergers in telecom that had previously been unthinkable on anti-competitive or antitrust grounds. That has included heavy pushes for a Sprint acquisition of T-Mobile or a Verizon bid to buy Comcast -- the massive, obvious anti-competitive impact of both deals be damned.

This week, the merger mania du jour apparently involves a plan that would involve Comcast and French-owned Altice working in concert to buy Charter Communications, whose $180 billion asking price has proven too steep for any one company to contemplate alone (Verizon made a $100 billion offer and was rejected). Citigroup has floated the idea that after acquisition, Comcast could integrate the Time Warner Cable customers they were blocked by regulators from acquiring for anti-competitive reasons, leaving us with one giant cable company to rule us all:

"Charter is pretty much an equal rival in size and scope to Comcast at this point, at least with regards to subscriber numbers. Each company has somewhere in the neighborhood of 25 million customers. For the two to merge outright would leave one dominant cable company in the country, with about half of the entire nation’s subscribers — from coast to coast, and in many of the states in between — under a single umbrella."

Granted there's no guarantee such a deal will happen. Wall Street stock jocks often like to float rumors then profit off of the herk and jerk of stock prices caused by the half-truths they themselves create. But should Comcast be able to swing such a deal, we could be looking at a supernova of anti-competitive dysfunction, the likes of which made Comcast's well documented issues seem charming.

Consider that cable's monopoly was already blossoming thanks to the countless telcos which have effectively stopped trying to compete -- in large part because Wall Street thinks spending money to upgrade your networks is a fool's errand. Then ponder the fact that the current FCC is busy gutting any and all meaningful oversight of these companies, allowing them to inevitably engage in all manner of anti-competitive shenanigans, from arbitrary and punitive usage caps, to net neutrality and privacy violations.

This all may sound like hyperbole, but it's a future that's very much under construction. And the folks giddily contemplating the "looming synergies" of such monumental coagulation are building it with absolutely zero concern for the impact on consumers, startups, small businesses or the health of the internet. Telecom sector executives and the folks paid to cheer their every decision have every intention of taking the already dismal Comcast experience, injecting it with steroids, and setting it loose on a market with no organic competitive or regulatory checks and balances. And by the time most notice the negative repercussions, these same folks will already be hyping the next wave of mindless consolidation.

Filed Under: broadband, isp, mergers, wall street
Companies: altice, bright house, charter, comcast, time warner cable

ISPs Now Charging Broadband Users A Steep Premium If They Want To Avoid Usage Caps

from the captive-audience dept

Thanks to the lack of broadband competition, the ISP push to impose unnecessary and arbitrary usage caps shows no sign of slowing down. Comcast continues to expand its "trial" of usage caps and overage fees, while AT&T has followed suit. And both companies have now started adding a new wrinkle to the mix, charging consumers $30 to $35 more per month if they want to avoid usage caps entirely. That's right, despite broadband getting cheaper than ever to provide, ISPs are now charging you a massive monthly premium if you want the same unlimited broadband service you enjoyed yesterday.

Now Suddenlink, a US cable operator recently bought by French telecom Altice, is also joining the festivities. The company is now informing customers that they can avoid usage caps if they're willing to sign a long-term contract. In year one of that contract avoiding usage caps is "free." In year two it will cost users $5 more a month, and $10 a month after that. Obviously there's nothing stopping the "hey, don't cap me" fee from skyrocketing further down the road. The caps and added fees are necessary, Suddenlink insists, to improve the "consumer experience":

"Data plans are one step among several that help us continue delivering a quality Internet experience for our customers. Other steps include the sizable investments we’ve made and continue making to provide greater downstream and upstream system capacity and more bandwidth per home. Even with those investments, a relatively few customers use a disproportionate amount of data, which can negatively affect the Internet experience of those who use far less. That’s why, as a complement to our network investments, we’ve established data plans."

The particular usage cap "experience" at Suddenlink has been a rocky one for customers. Suddenlink originally imposed usage caps back in 2012, but had to back off the attempt after users complained they were being billed for usage when their modems were off or they weren't at home (regulators have shown no interest in regulating meter accuracy, so as a result they often aren't). By 2013 the ISP claimed it had sorted out most of its problems, and now imposes current usage caps that range from 250 GB to 550 GB, depending on speed. Users pay $10 per each 50 GB over the cap they travel.

While Suddenlink's $10 is better than the $30-$35 being charged by AT&T and Comcast to avoid being capped, the precedent remains problematic all the same. Usage caps simply aren't necessary on modern, well-managed networks; flat-rate pricing has proven perfectly profitable enough to help fund infrastructure improvements. What usage caps do is protect legacy TV from Internet video, while letting companies charge a captive audience more money for a product whose provisioning costs are dropping. Just ask Suddenlink CEO Jerry Kent, who acknowledged the latter to investors a few years ago:

"I think one of the things people don’t realize [relates to] the question of capital intensity and having to keep spending to keep up with capacity. Those days are basically over, and you are seeing significant free cash flow generated from the cable operators as our capital expenditures continue to come down.”

Kent has since crowed to investors about how usage caps "have become a significant revenue stream for us." And that's great for broadband duopolies, but notably less great for consumers already paying some of the highest broadband prices in the developed world. It's also problematic for the startups, small companies and other innovators that are going to be hurt by the move toward zero rating only the biggest, wealthiest companies from usage caps (yet another layer of new revenue on a service that costs less and less to provide, especially if you're happily skimping on customer service).

As we've noted a few times companies like AT&T and Verizon are giving up on unwanted DSL customers, in turn creating a stronger cable monopoly -- one that intends on taking full advantage.

Filed Under: broadband, isp, usage caps
Companies: altice, suddenlink