Series of Tubes – Page 5

Broadband Privacy Can Prevent Discrimination, The Case of Cable One and FICO Scores.

Harold June 1, 2016 June 1, 2016Cable, Series of Tubes, Tales of the Sausage Factory

The FCC has an ongoing proceeding to apply Section 222 (47 U.S.C. 222) to broadband. For those unfamiliar with the statute, Section 222 prohibits�a provider of a “telecommunications service” from either disclosing information collected from a customer without a customer’s consent, or�from using the information for something other than providing the telecom service. While most of us think this generally means advertising, it means a heck of a lot more than that — as illustrated by this tidbit from Cable One.

H.R. 2666: House Prepares to Give ISPs License To Price Gouge (Even More).

Harold April 15, 2016 April 15, 2016How Democracy Works, Or Doesn't, Series of Tubes, Tales of the Sausage Factory

The House Rules Committee has scheduled a floor vote�for Friday April 15 (today!) for an amended version of H.R. 2666 aka�the “No Rate Regulation of Broadband Internet Access Act,” aka the “Twice The Evil of the Beast” Act. Ostensibly, the bill is supposed to codify the commitment made by President Obama, FCC Chair Tom Wheeler, and just about everyone else that the FCC would never use the classification of broadband as a Title II service to engage in “utility style rate regulation.”

Surprise! As I explain in a much shorter version�over here, H.R. 2666 basically removes the authority of the FCC to take action on any complaints relating to overcharges, fees or other nasty practices that broadband providers may do to overcharge you — provided they disclose them honestly (and, since there is not exactly a lot of competition, disclosure doesn’t help much). It also effectively strips the FCC of its authority to address zero-rating — even in the worst anticompetitive cases where a provider zero-rates its own content while applying its broadband cap (however discriminatory) to rival services. Along the way, it renders various merger commitments involving offering low cost service to the poor unenforceable and has lots of other nasty impacts.

Needless to say, the collective trade associations of the broadband industry are thrilled.

That’s not just me talking. That’s from the President’s veto threat message. Additionally, this group of 50 public interest groups think H.R. 2666 is a very,�very bad bill, and 30 groups signed on to this letter explaining how H.R. 2666 will screw up privacy protection by letting ISPs charge you for it (aka “pay for privacy” like this from AT&T).

I’m going to repeat a pitch here I will repeat often: If you think letting broadband providers price gouge and undermine net neutrality is a bad thing, please call your Representative in the House directly, or use this link to go to BattleForTheNet.com�and call your Representative (they have a tool to help find your Rep and have a script — but use your own words, that is always more convincing.

Made your call? Good. See below for lots more details so you can explain to your friends why they should call. . . .

What You Need To Know To Understand The FCC National Broadband Report.

Harold January 27, 2016 January 28, 2016Life In The Sausage Factory, Series of Tubes, Tales of the Sausage Factory

The FCC is required by Congress to do lots of reports. Of these, the one that gets the most attention is the annual Report on broadband deployment under Section 706 of the 1996 Telecommunications Act (47 C.F.R. 1302). Sure enough, with the latest report announced as up for a vote at the FCC’s January open meeting, we can see the usual suspects gathering to complain that the FCC has “rigged the game” or “moved the goal post” or whatever sports metaphor comes to mind to accuse the FCC of diddling the numbers for the express purpose of coming up with a negative finding, i.e.�That “advanced telecommunications capability” (generally defined as wicked fast broadband) is not being deployed in a timely fashion to all Americans.

As usual, to really understand what the FCC is doing, and whether or not they are actually doing the job Congress directed, it helps to have some background on the now 20 year old story of “Section 706,” and what the heck this report is supposed to do, and why we are here. At a minimum, it helps to read the bloody statute before accusing the FCC of a put up job.

The short version of this is that, because between 1998 and 2008 the FCC left the definition of “broadband” untouched at 200 kbps, Congress directed the FCC in the Broadband Data Improvement Act of 2008 (BDIA) (signed by President Bush, btw) to actually do some work, raise the numbers to reflect changing needs, and take into account international comparisons so as to keep us competitive with the world and stuff. This is why, contrary to what some folks seem to think, it is much more relevant that the EU has set a goal of 100% subscription of 30 mbps down or better by 2020�than what is the minimum speed to get Netflix.

Also, the idea that the FCC needs a negative finding to regulate broadband flies in the face of reality.�Under the�Verizon v. FCC decision finding that Section 706 is an independent source of FCC authority to regulate broadband, the FCC gets to regulate under Section 706(a) (general duty to encourage broadband deployment) without making a negative finding under Section 706(b) (requirement to do annual report on whether broadband is being deployed to all Americans in a “reasonable and timely manner”).

So why does the FCC do this report every year if they already have regulatory authority over broadband.�Because Congress told them to do a real report every year. This is what I mean about reading the actual statute�first�before making ridiculous claims about FCC motivation. Happily, for those who don’t have several years of law school and are ld enough to have actually lived through this professionally, you have this delightful blog to give you the Thug Notes version.

More below . . . .

My Amazingly Short (For Me) Quickie Reaction To Oral Argument

Harold December 4, 2015 December 8, 2015Series of Tubes, Spectrum, Tales of the Sausage Factory

So, I suppose you’re wondering, how did oral argument went. �Since we have less than an hour before Shabbos, I will give you all my short version. You can download the recording from the D.C. Circuit here: Part I (wireline), Part II (wireless, First Amendment, Forbearance).

As always, the usual disclaimers apply. It is always perilous to try to guess from oral argument how things are going to go. Judges may ask a lot of questions to explore options, or they may let one judge pursue a line of inquiry while hanging back. �And there’s lots of issues that never get discussed that are part of the appeal and will get decided based on the written record. Or the judges may be leaning one way, but when they start drafting and hasj things out further they change their mind.

Taking all that into account, here are my impressions based on sitting in the front row listening and watching the judges and attending to all the nuances, as filtered to my obvious bias in wanting to see the FCC affirmed.

More below . . . .

Net Neutrality: Tomorrow Is The Judgement Day (Well, Oral Argument).

Harold December 3, 2015 December 3, 2015Series of Tubes, Spectrum, Tales of the Sausage Factory

So here we are. One day more until oral argument on the FCC’s February 2015 decision to reclassify broadband as a Title II telecom service and impose real net neutrality rules. We definitely heard the people sing — 4 million of them sang the songs of very angry broadband subscribers�to get us where we are today. But will we see a new beginning? Or will it be every cable company that will be king? Will Judges Tatel and Srinivasen and Senior Judge Williams nip net neutrality in the bud? Or will we finally meet again in freedom in the valley of the Lord?

You can read my blog post on the Public Knowledge blog for a summary of the last 15 years of classification/declasification fights, rulemakings, and other high drama. You can read my colleague Kate Forscey’s excellent discussion of the legal issues in this blog post here. This blog post is for all the�geeky Tales of the Sausage Factory type factoids you need to know to really enjoy this upcoming round of legal fun and games and impress your friends with your mastery of such details. Thing like, so how do you get in to the court to watch? What opinions have the judges on the panel written that give us a clue? What fun little things to watch for during argument to try to read the tea leaves? I answer these and other fun questions below . . .

Turns Out Our Mobile Broadband Is As Mediocre As Our Wireline Broadband.

Harold September 25, 2015 September 25, 2015Series of Tubes, Spectrum, Tales of the Sausage Factory

It is time once again for folks to file comments in the Federal Communications Commission (FCC) annual Notice of Inquiry on the Deployment of Advanced Telecommunications Services, aka the Section 706 Report (after Section 706 of the 1996 Act) aka the data (which along with FCC Form 477) which forms the basis for the FCC’s annual “State of the Broadband” report. You can read this year’s notice here. This year’s notice is particularly good, as (befitting a more mature broadband industry than we had when we started running this in 1998), so of course all those who would prefer we set the bar low enough to give ourselves a gold star for showing up hate it. See, for example,�Pai dissent here, comments of NCTA here, USTA here.

Which makes these two reports on the state of broadband particularly timely. According to Akami, we rank 20th in global broadband speeds. Before�the broadband industry and their cheerleaders counter that we have the best mobile broadband/most extensive LTE deployment in the world, I point to this new report from OpenSignal�that finds we rank 54th in global mobile network speed.

20th and 54th. I’m so proud. USA! USA!

I unpack this a little bit below . . . .

Phone Industry To The Poor: “No Privacy For You!”

Harold September 18, 2015 September 18, 2015Life In The Sausage Factory, Series of Tubes, Tales of the Sausage Factory

Back in June, the FCC released a major Order on the Lifeline program.�Lifeline, for those not familiar with it by that name, is the federal program started in the Reagan era to make sure poor people could have basic phone service by providing them with a federal subsidy. Congress enshrined Lifeline (along with subsidy programs for rural areas) in 1996 as Section 254 of the Communications Act. While most of the item dealt with a proposal to expand Lifeline to broadband, a portion of the Order dealt with the traditional FCC Lifeline program.

As a result, the wireless industry trade association, CTIA, has asked the FCC to declare that poor people applying for Lifeline have no enforceable privacy protections when they provide things like their social security number, home address, full name, date of birth, and anything else an identity thief would need to make your life miserable. Meanwhile, US Telecom Association, the trade association for landline carriers, has actually sued the FCC for the right to behave utterly irresponsibly with any information poor people turn over about themselves — including the right to sell that information to 3rd parties.

Not that the wireless carriers would ever want to do anything like that, of course! As CTIA, USTA, and all their members constantly assure us, protecting customer privacy is a number one priority. Unless, of course, they’re running some secret experiments on tracking without notifying customers that accidentally expose customer information to third parties. Oh, and it might take longer than promised to actually let you opt out once you discover it. And in our lawsuit against the FCC’s Net Neutrality rules, they explicitly cite the inability to use customer information for marketing, the inability to sell this information to third parties, and the requirement to protect this information generally as one of the biggest burdens of classifying broadband as Title II. But other than that, there is no reason to think that CTIA’s members or USTA’s members would fail to respect and protect your privacy.

So how did the Lifeline Reform Order which most people assumed was all about expanding Lifeline to broadband became the vehicle for the phone industry to tell poor people they have no privacy protections when they apply for a federal aid program? I explain below . . .

New D.C. Circuit Decision Knocks Fairly Large Hole In Anti-Net Neutrality Case.

Harold August 30, 2015 August 30, 2015Life In The Sausage Factory, Series of Tubes, Tales of the Sausage Factory

Every now and then, the D.C. Circuit throws you an interesting little curve ball. This opinion issued last week would appear to knock a serious hole in the argument made by the cable and telcos against the FCC’s reclassification of broadband as a Title II telecom service.

The case,�Home Care Association of America v. Weil (HCAA)�addresses the legal question that takes up about a quarter of the main brief for petitioners: does the�Brand X�decision that the Telecom Act was “ambiguous” mean that the FCC gets deference under the�Chevron Doctrine�when it reexamines the question in 2015 and comes out the other way? Or can Petitioners argue that the statute is not ambiguous and explicitly precludes the interpretation the FCC now gives it? Under�HCAA, the D.C. Circuit appears to find that once the Supreme Court decides a statute is ambiguous, that settles the question.�If the statute was ambiguous for an interpretation in one direction, it is still ambiguous — and thus subject to�Chevron�deference — when the agency reverses course. Nor does the agency have a higher burden when it reverses course then it did when it first made the decision.

Good lawyers can always distinguish cases, of course — as can a conservative panel of the D.C. Cir. that wants to find a particular result. Furthermore, Petitioners have lots of other arguments to make that are not impacted by the�HCAA decision. Nevertheless,�it seems clear this case is good news for the FCC (and those of us who support the FCC), and Petitioners will no doubt need to spend a good portion of their reply brief explaining why HCAA doesn’t dictate the result here.

I explain in more detail below . . . .

The First Net Neutrality Complaint Under The 2015 Rules Is Likely To Lose, And That’s A Good Thing.

Harold June 23, 2015 June 23, 2015Series of Tubes, Tales of the Sausage Factory

As reported by Brian Fung at Washpo and others, a company called Commercial Network Services (CNS) has filed the first network neutrality complaint under the FCC’s new rules — which went into effect June 12 after the D.C. Circuit denied a stay request. You can read the complaint here. While I probably should not prejudge things, I expect the FCC to deny the complaint for the excellent reason that — accepting all the facts alleged as true — Time Warner Cable did absolutely nothing wrong.

I elaborate on what CNS gets wrong, why this differs from other high-profile disputes like Cogent and Level 3, and why such an illustration is good for the FCC’s rules as a whole, below . . .

Net Neutrality Litigation: Round 1 Goes To the FCC.

Harold June 12, 2015 June 12, 2015Cable, Series of Tubes, Tales of the Sausage Factory

Good news! The D.C. Circuit denied the request by the carriers suing the Federal Communications Commission (FCC) to prevent the FCC’s net neutrality rules and reclassification of broadband as a Title II telecom service. As of today, the Net Neutrality rules are in effect, and broadband access is once again a Title II telecommunications service — pending the final outcome of the lawsuit challenging the the FCC’s actions.

Reactions from net neutrality opponents have ranged from defiance�to “no biggie” with a side of trying to claim a partial win for getting expedited briefing (I’ll explain below why this is a tad disingenuous). On Twitter, I did see a few of my opposite numbers wailing and gnashing their teeth, at the prospect that their beloved Broadband Equestria ruled by the wise Queen Comcast Celestia and Princess Verizon Twilight Sparkle�is now going to be converted into a Hellscape overrun�with Tyrannosaurus Tariffs that will devour helpless ISPs like tourists dumb enough to go to Jurassic World. Needless to say, supporters of net neutrality and Title II, like my employer Public Knowledge, have been somewhat more upbeat.

So what does all this mean for the litigation and the ongoing machinations in Congress around net neutrality? Short version — the court was not impressed with the arguments of the carriers that the FCC was so whacky crazy power-usurping unlawful that this case is the slam-dunk reversal the carriers and their cheerleaders keep saying it is. Mind you, that doesn’t mean the FCC will win. But it does mean that opponents of net neutrality and Title II might want to ratchet back the TOTAL CONFIDENCE OF VICTORY they have exuded until now just a wee bit. It also provides a psychological lift to the pro-net neutrality side that the FCC can win this even in the D.C. Circuit.

On the political side, Republicans had hoped that a stay would push Democrats to the bargaining table to avoid the litigation risk. Because the FCC’s odds improve with the denial of the stay, this may have the opposite effect, with�Democrats more likely to wait for a court decision rather than try to strike a deal. This could either prompt Republicans to sweeten their offer, or double down on efforts for total repeal.

I provide the longer version below . . .