Spectrum

Spectrum issues, community wireless, muni broadband

Pai Continues Radical Deregulation Agenda. Next On The Menu — SMS Texting and Short Codes

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In December 2007, Public Knowledge (joined by several other public interest groups] filed a Petition For Declaratory Ruling asking the Federal Communications Commission (FCC) to clarify that both SMS Text Messaging and short codes are “Title II” telecommunications services. Put another way, we asked the FCC to reaffirm the basic statutory language that if you use telephones and the telephone network to send information from one telephone number to another, it meets the definition of “telecommunications service.” (47 U.S.C. 153(53)) We did this because earlier in 2007 Verizon had blocked NARAL from using its short code for political action alerts. While we thought there might be some question about short codes, it seemed pretty obvious from reading the statute that when you send “information between or among points of the users choosing, without change in the form or content as sent and received” (definition of “telecommunications”), over the phone network, using phone numbers that it is a “telecommunications service.”

 

Sigh.

 

On the anniversary of the repeal of net neutrality, FCC Chair Ajit Pai now proposes another goodie for carriers – classifying both short codes and text messages as Title I “information service” rather than a Title II telecommunications service. As this is even more ridiculous than last year’s reclassification of broadband as Title I, the draft Order relies primarily on the false claim that classifying text messaging as Title I is an anti-robocall measure. As we at PK pointed out a bunch of times when the wireless carriers first raised this argument back in 2008 – this is utter nonsense. Email, the archetypal Title I information service, is (as Pai himself pointed out over here) chock full of spam. Furthermore, as Pai pointed out last month, the rise in robocalls to mobile phones has nothing to do with regulatory classification and is primarily due to the carriers not implementing existing technical fixes. (And, as the Wall St J explained in this article, robocallers have figured out how to get paid just for connecting to a live number whether or not you answer, which involves a kind of arbitrage that does not work for text messages.)

 

As if that were not enough, the FCC issued a declaratory ruling in 2015, reaffirmed in 2016, that carriers may block unwanted calls or texts despite being Title II common carriers. There is absolutely nothing, nada, zip, zero, that classifying text messages as Title II does that makes it harder to combat spam. By contrast, Title II does prevent a bunch of blocking of wanted text messages as an anticompetitive conduct which we have already seen (and which is occurring fairly regularly on a daily basis, based on the record in the relevant FCC proceeding (08-7). This includes blocking immigrants rights groups, blocking health alerts, blocking information about legal medical marijuana, and blocking competing services. We should therefore treat the claims by industry and the FCC that only by classifying text messaging as “information services” can we save consumers from a rising tide of spam for what they are – self-serving nonsense designed to justify stripping away the few remaining enforceable consumer rights.

 

Once again, beyond the obvious free expression concerns and competition concerns, playing cutesy games with regulatory definitions will have a bunch of unintended consequences that the draft order either shrugs off or fails to consider. Notably:

 

  1. Classifying texting as Title I will take revenue away from the Universal Service Fund (USF). This will further undermine funds to support rural broadband.

 

  1. Classifying texting as Title I disrupts the current automatic roaming framework established by the FCC in 2007.

 

  1. Classifying texting as Title I may, ironically, take it out of the jurisdiction of the Robocall statute (Telephone Consumer Protection Act (TCPA) of 1991).

 

  1. Trashing whatever consumer protections, we have for text messages, and taking one more step to total administrative repeal of Title II completely. Which sounds like fun if you are a carrier but leaves us operating without a safety net for our critical communications infrastructure (as I’ve been writing about for almost ten years).

 

I unpack all of this below.

 

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The FCC Decides Rural America Has Too Many Broadband Options, So They Are Taking Away 5G Spectrum To Give To The Big Guys.

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The FCC is about to take spectrum away from rural providers and we are making a last minute effort to stop it. Last week, my employer Public Knowledge sent a letter to FCC Chairman Ajit Pai asking him to change the draft Order altering the rules for the “Citizen’s Broadband Radio Service” (CBRS) to keep several of the old rules in place. Specifically, we want the FCC to keep at least some license areas at census tract size, rather than making them bigger and therefore unaffordable for small providers like wireless ISPs (WISPs). We also want the FCC to keep “use or share,” a rule that says that if the licensee is not using a piece of their license area it becomes open for general use on an unlicensed basis until the licensee actually starts using it. We’re also asking the FCC to leave the license terms at 3 years with no expectation it will be renewed (that is to say, it gets re-auctioned at the end of 3 years) rather than go to 10-year terms with an expectation of renewal. Finally, if the FCC is going to change the terms of the licenses as proposed, they need to have some meaningful build out obligations to ensure that rural areas get served.

 

I explain all this below, as well as linking to this nifty tool so you can contact your member of Congress and ask them to tell the FCC to leave rural America some useful spectrum so those who actually want to serve rural America can do so.

More below . . . .

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The Upcoming IPAWS “Presidential Level Alert” Test Is Not A Trump Thing — Really.

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There is a bunch of hysteria running rampant about the September 20, 2018 test of the “Presidential Level Alert” functionality of the Wireless Emergency Alert System (WEA), which is part of the Integrated Public Alert Warning System (IPAWS).  (See FEMA Notice of Alert Here.) The thrust of the concerns is that Fearless Leader is creating a propaganda system that can blast through all cell phones and no one can opt out.

 

I ask everyone to please calm down. The fact that it is called a “Presidential Alert” has nothing to do with Trump. This all goes back to The Warning, Alert, Response Network Act (WARN Act) of 2006 (and tweaked by the Integrated Public Alert and Warning System Act of 2015).  That Act required that we integrate the old Emergency Alert System (EAS) which is on broadcast and cable with a newly created wireless emergency alert system (WEA) so that we could take advantage of the emerging communications technology (texting in 2006, broadened in 2015) to warn people in advance of disasters.

 

Most emergency alerts are local. Indeed, the primary challenge of EAS and WEA in the last few years has been focused on trying to get as narrowly targeted and hyper-local as possible, so that people who are not impacted don’t receive false alerts, while people who are impacted receive real-time instructions. There is also a long term element about incorporating new technologies capable of handling multi-lingual warnings (and not just Spanish) and other potentially life saving capabilities (such as locating the nearest evacuation shelter).

 

However, one element is the creation of an integrated national emergency alert system in the highly unlikely event that we might have some kind of national level disaster that requires immediate real-time communication of one set of instructions on a national basis. Prior to the WARN Act, such as capacity did not exist. It has now been developed, but it has never been tested on a national basis before. The test of this capability was scheduled for September 20, 2018 well before Hurricane Florence became a concern.

 

This absolutely has nothing to do with Trump. The WARN Act mandates that while users may opt out of other alerts, they may not opt out of  “Presidential Level Alerts.” This was decided way back in 2006, when Congress determined that people should not be able to opt out of anything so important that it triggers a nation-wide alert (although, annoyingly, they did give wireless carriers freedom to opt out of WEA entirely, which tells you a lot about the priorities of Congress back in 2006). See WARN Act Sec. 602 (b)(2)(E). This was not a choice by the Trump Administration. Nor can the current FCC allow people to opt out of “Presidential Level Alerts.” It’s in the WARN ACT of 2006.

 

The IPAWS Act of 2015 (Sec. 526(d)) further limits IPAWS (including Presidential Level Alerts) to messages relating to “natural disaster, act of terrorism, or other man-made disaster or threat to public safety.) And while it is entirely possible for President Trump to decide that generating support for his reelection campaign relates to either and act of terrorism or other man-made disaster, that still wouldn’t be enough to switch on IPAWS. As with many things, the request goes down the chain of command, with lots of safeguards along the way to prevent abuse of the system. Remember, this was modified back in 2015 by Republican Senator Ron Johnson when Republicans were convinced Obama was an evil socialist Kenyan out to destroy our way of life. You can bet they they put safeties in place.

 

So please, please stop spreading rumors about this. Please stop treating this as more evidence of Trump overreach with all kinds of possible sinister motives. The President can’t just press a button to send out a text. And while a determined President with enough effort can abuse any system, this is not something Trump can just decide to do with his morning Tweets.

 

We have enough real craziness going on in the world. We do not need to encourage people to freak out about a routine test of life-saving technology, or portray it as an abuse of authority or diversion of funds.

 

FULL DISCLOSURE: I was asked during the Obama Administration to apply to the FEMA IPAWS subcommittee to act as a consumer/privacy advocate (See IPAWS Act of 2015 (b)(2)(I)(IX)). My admission was not formally processed and approved until 2017. I have been an active member of the FEMA-NAC-IPAWS for approximately the last two years. This statement is entirely my own. It does not represent a statement of the FEMA-NAC-IPAWS or any other advisory committee or federal agency. This is just me asking people to stop panicking and resist the urge to see everything in the administration as an abuse of authority. Yes, the times warrant scrutiny. But there is a difference between laudable skepticism and scrutiny v. panic and conspiracy theory.

 

Stay tuned . . . .

Stoping the 5G Digital Divide Before It Happens.

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About 10 years ago, the telcos and the cablecos argued that they needed “franchise reform” to deploy fiber to the home high speed broadband. Anyone offering cable services (which, at the time, were a necessary part of any bundle including broadband — yup, times change) needs to get a franchise. At the time, all franchises were local. They also usually required the franchisee to serve the entire franchise area with same quality service. This requirement to serve the entire service area with the same quality service is called an “anti-redlining” provision. It is designed to ensure that providers of service do not avoid traditionally unserved communities (particularly communities of color), who were on the wrong side of the “red line” drawn by real estate developers to separate the whites only neighborhoods from the “colored” neighborhoods. (For more info, see this clip from Adam Ruins The Suburbs.) While we no longer have laws mandating segregation, the combination of stereotypes about urban neighborhoods dominated by people of color, combined with the unfortunate economic reality that non-whites systemically earn lower incomes than whites often means that providers simply ignore these neighborhoods when they offer services and focus investment on whiter (and wealthier) areas. Anti-redlining laws are designed to prevent that from happening.

 

To return back to the mid-00s, telecos (later joined by cable cos demanding a level playing field) pushed states to reform their franchise laws to (a) replace local franchising with state franchising; and, (b) eliminate most of the requirements of the franchise — including eliminating the anti-redlining provisions. The carriers argued that OF COURSE they intended to provide FTTH everywhere, including communities of color. But if they had to deal with local franchise authorities dictating deployment schedules and demanding all sorts of conditions to get a franchise, then — gosh darn it — they just would not be able to invest in FTTH no matter how much they wanted to do so. Although I and my then employer Media Access Project worked with the handful of local and national orgs fighting repeal of local franchises generally and anti-redlining provisions specifically, we lost bigly.

 

Today, I am once again feeling the Cassandrefreude. As predicted 10 years ago, in the absence of anti-redlining provisions, carriers have not invested in upgrading their broadband capacity in communities of color at anything close to the same rate they have upgraded in wealthier, whiter neighborhoods. As a result, the urban digital divide is once again growing. It’s not just that high-speed broadband is ridiculously expensive, although this is also serious barrier to adoption in urban areas. It’s also that in many low-income and predominantly non-white neighborhoods, speeds on par with those offered in wealthier and whiter neighborhoods are not even available.

 

This problem is further compounded by the belief that we have solved the problem of urban deployment and the only places where deployment (as opposed to simply cost of access) remains an issue is in rural America. But while the problems in rural America are very real, we need to recognize that the digital divide problem is actually growing in urban areas as carriers rush to provide gigabit speed in some neighborhoods while leaving other neighborhoods in the digital dust.

 

With the focus on 5G deployment, however, we have a rare opportunity to avoid repeating past mistakes. Just once, just once, we could actually take steps to prevent the inequality before it happens.

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So What The Heck Does 5G Actually Do? And Is It Worth What The Carriers Are Demanding?

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It’s become increasingly impossible to talk about spectrum policy without getting into the fight over whether 5G is a miracle technology that will end poverty, war and disease or an evil marketing scam by wireless carriers to extort concessions in exchange for magic beans. Mind you, most people never talk about spectrum policy at all — so they are spared this problem in the first place. But with T-Mobile and Sprint now invoking 5G as a central reason to let them merge, it’s important for people to understand precisely what 5G actually does. Unfortunately, when you ask most people in Policyland what 5G actually does and how it works, the discussion looks a lot like the discussion in Hitchhikers Guide To the Galaxy where Deep Thought announces that the answer to Life the Universe and Everything is “42.”

 

So while not an engineer, I have spent the last two weeks or so doing a deep dive on what, exactly does 5G actually do — with a particular emphasis on the recently released 3GPP standard (Release 15) that everyone is celebrating as the first real industry standard for 5G. My conclusion is that while the Emperor is not naked, that is one Hell of a skimpy thong he’s got on.

 

More precisely, the bunch of different things that people talk about when they say “5G”: millimeter wave spectrum, network slicing, and something called (I am not making this up) “flexible numerology” are real. They represent improvements in existing wireless technology that will enhance overall efficiency and thus add capacity to the network (and also reduce latency). But, as a number of the more serious commentators (such as Dave Burstien over here) have pointed out, we can already do these things using existing LTE (plain old 4G). Given the timetable for development and deployment of new 5G network technology, it will be at least 5 years before we see more than incremental improvement in function and performance.

 

Put another way, it would be like calling the adoption of a new version of Wi-Fi “5G Wi-Fi.” (Which I am totally going to do from now on, btw, because why not?)

 

I elaborate more below . . .

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Interest Rates And Auction Policy –Why The FCC Should Move Quickly On A 5G Auction.

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It is a measure of how much communications policy warps my brain that my thoughts about the rise in the Consumer Price Index (CPI) and the likelihood that the Federal Reserve will raise interest rates aggressively as a result have little to do with the impact on stocks, or even my credit card debt, but go directly to the impact on any future spectrum auction. Short version — nothing good. So if we needed another reason for the FCC to move quickly to schedule the next 5G Auction, the potential rise in interest rates is a good one.

 

I explain this in more detail below . . .

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Solving the Rural Broadband Equation — Fund Infrastructure, Not Carriers.

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A happy confluence of political circumstances has made rural broadband a hot topic and makes it possible to believe that perhaps, finally, the stars will properly align to do something more than the Connect America Fund. No offense to CAF, but everyone knows that CAF alone cannot provide quality, ubiquitous affordable broadband to all Americans. Not by a long shot.) Needless to say, Republicans and Democrats have rather different approaches to how they want to close the rural digital divide. I’ll save a comparison of what’s out there for a different post, because I want to take this opportunity to propose an entirely different approach than anything else out there at the moment.

 

It begins by recalling some wisdom I learned at my father’s knee. My father teaches tax law at Boston University. When grading student exams, he would often shake his head and sigh. “Answer the question asked,” he would say. “Don’t answer the question you want to answer because you have the answer, answer the question asked.”

 

What does that have to do with rural broadband? When we think about solving the rural broadband problem, nearly everyone tries to answer the question: “How do I find a carrier to serve rural areas.” But that’s not actually the problem we’re trying to solve. The problem we’re actually trying to solve is getting people access to quality broadband so they can participate in the modern digital economy and modern society generally. On the surface, that may look like the same thing. After all, you can’t get broadband access without some kind of carrier, right?

 

But if we start by framing the question in terms of a goal (get people broadband access) rather than a solution (find people a broadband carrier), we open a whole new world of solutions and approaches. As I discuss in more detail below, the reason rural communities don’t have broadband access is fairly straightforward: the communities in question are not sufficiently profitable to serve to justify the investment by profit maximizing firms (I’ll get to the importance of the word “sufficiently” below). If we then apply the skills we all (hopefully) learned back in high school math, we then break the problem down into solvable components. So we can either (a) raise the profitability of the target area; (b) lower the cost of deployment and operation; or (c) find entities that are either not motivated by profit or that are satisfied with much smaller profits.

 

We solved this one way back in the 20th Century. But the great virtue of the modern communications market, which allows us to break up the supply chain and bring in economies of scale from other markets, provides us with a bunch of new ways to solve the problem. Ideally, used in combination, we can have a solution that doesn’t lock rural areas in to a single, permanently subsidized provider, but instead closes the digital divide and enhances competition and potentially drives down everybody’s costs.

 

Short version — fund infrastructure, not carriers. And by “fund” I don’t just mean “throw money at,” although we need to be clear there is no way to avoid throwing money at this if we want to get the job done.

 

Lets break this out below . . . .

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What You Need To Know About the 2017 Wireless Competition Report.

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Federal Communications Commission Chairman (FCC) Ajit Pai has put the 20th Wireless Competition Report on the agenda for the FCC’s September Open Meeting. Technically, the Wireless Competition Report is a non-rulemaking agency report to Congress, similar to the many reports the FCC does on everything from the prices paid for cable services to the state of the Satellite industry. But the Wireless Competition Report has become something of a big deal in recent years, owing to the refusal of the FCC since 2010 to find whether or not there is “effective competition” in the wireless industry. At the same time, then-FCC Chair Julius Genachowski moved the Wireless Competition Report (along with a number of other reports) from being a Commission-level item voted on by the full Commission to a Bureau-level item. This torked a bunch of people off. Those who regarded the wireless market as obviously not competitive saw all this as a failure of courage to call out the wireless market for its lack of competition. OTOH, those who consider the wireless market a paragon of competition derided this as a means for the regulation-mad Obama Administration to impose regulation on a clearly competitive and functioning market.

 

Either way, Pai is now putting it back at the Commission level and the Report is once again finding that we have “effective competition” — whatever that means. So it seems like a good time to run through the Wireless Competition Report, what it is, what it means, what it doesn’t mean, and how it gets used and/or abused. And, of course, how it relates to net neutrality, since everything in the freaking world relates to net neutrality these days.

 

Short version: the Report is non-binding on anything but overall provides a picture of the wireless industry by the expert agency charged by Congress to oversee the industry. It is therefore useful evidence for a lot of things ranging from merger approval to future regulatory initiatives. This years report also finds (surprise!) that although speeds have dramatically improved for mobile broadband, as has deployment generally, the level of investment by carriers dropped 9% from 2015 to 2016. How to measure this investment and how this should or should not impact the Title II debate I have dealt with extensively in this blog post, and therefore won’t spend too much time on it here.

 

Longer version below . . .

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Are Police Jamming Cell Phones At Standing Rock Protest? The FCC Should Investigate.

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Given the lack of coverage in mainstream media, you might not have heard about the ongoing protest against the construction of the Dakota Access Pipeline immediately upstream from the Standing Rock Sioux reservation aka #NoDAPL. You can find some good statistics on the pipeline and number of arrests associated with the protest here. Setting aside my personal feelings about democracy, freedom to peacefully protest, and how the Sioux concerns seem rather justified in light of the Alabama pipeline explosion, this has now raised an interesting communications issue that only an FCC investigation can solve. Are police jamming, or illegally spying, on communications at the protest and associated Sacred Stone Camp?

 

Over the last week, I have seen a number of communications from the protest about jamming, particularly in the period immediately before and during the Thursday effort by police to force protesters off the land owned by Dakota Access Pipeline. In addition, this article in Wired documents why tribal leaders connected with the tribal telecom provider, Standing Rock Telecom, think they are being jammed. I’ve had folks ask to speak to me using encrypted channels for fear that law enforcement will use illegal monitoring of wireless communications. As this article notes, there are a number of telltale signs that law enforcement in the area have deployed IMSI catchers, aka Stingrays, to monitor communications by protesters. However, as I explain below, proving such allegations — particularly about jamming — is extremely difficult to do unless you are the FCC.

 

Which is why the FCC needs to send an enforcement team to Standing Rock to check things out. Given the enormous public interest at stake in protecting the free flow of communications from peaceful protests, and the enormous public interest in continuing live coverage of the protests, the FCC should move quickly to resolve these concerns. If law enforcement in the area are illegally jamming communications, or illegally intercepting and tracking cell phone use, the FCC needs to expose this quickly and stop it. If law enforcement are innocent of such conduct, only an FCC investigation on the scene can effectively clear them. In either case, the public deserves to know — and to have confidence in the Rule of Law with regard to electronic communications.

 

More below . . . .

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How DSRC Makes Us Less Safe: Privacy and Cybersecurity (Part 1)

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As I discussed previously, the auto industry and the Department of Transportation (DoT) via the National Highway Traffic Safety Administration (NHTSA) plan to mandate that every new car include a technology called “Dedicated Short Range Communication” (DSRC), a device that talks to every other car with a DSRC unit (something called “vehicle-2-vehicle” or “v2v” communication). The auto industry fully supports this mandate, which is surprising (since industries rarely like mandates) until you (a) read this report by Michael Calabrese showing how the the auto industry hopes to monetize this with new services and harvesting your personal information (while piously claiming the mantle of saving lives); and, (b) the mandate helps DoT and the auto industry avoid sharing the spectrum with potential unlicensed uses (which actually do contribute to saving lives, but I will save that for latter).

 

As it happens, in addition to being a full time spectrum nut, I spend a fair amount of time these days on privacy, with just a touch of cybersecurity. So I started to dig into the privacy and cybersecurity implications of mandating DSRC on every car. My conclusion, as I discuss below, is that the DSRC mandate as it now stands is a disaster for both cybersecurity in cars and for privacy.

 

Yes, NHTSA addresses both privacy and cybersecurity in its 2014 Research Report on DSRC in terms of evaluating potential risks and solicited comment on these issues in their “Advanced Notice of Proposed Rulemaking” (ANPRM). It is in no small part from reading these documents that I conclude that either:

(a) NHTSA does not know what it is talking about; or,

(b) NHTSA does not actually care about privacy and cybersecurity; or,

(c) NHTSA is much more interested in helping the auto industry spectrum squat and doesn’t care if doing so actually makes people less safe; or,

(d) Some combination of all of the above.

 

As for the auto industry and its commitment to privacy and cybersecurity, I will simply refer to this report from Senator Markey issued in February 2015 (and utterly unrelated to DSRC), find that the auto industry (a) remained extremely vulnerable to cyberattacks and infiltration by hackers; (b) the auto industry had no organized capability to deal with this threat; and, (c) the auto industry routinely collected all kinds of information from cars without following basic notice obligations, providing meaningful opt out, or adequately protecting the information collected. (You can read this article summing up the report rather nicely.) For those who think the auto industry has no doubt improved in the last year, I refer you to this PSA from the FBI issued in March 2016 on vulnerabilities of cars to hacking.

 

I note that these remain problems regardless of whether the FCC permits sharing in the band, although it does call into question why anyone would mandate DSRC rather than rely on the much more secure and privacy friendly technologies already on the market — like car radar and LIDAR systems. But if the auto industry and NHTSA insist on making us less safe by mandating DSRC, the FCC is going to need to impose some serious service rules on the spectrum to protect cybersecurity and privacy the way they did with location data for mobile 911.

 

And, just to make things even more exciting, as explained in last week’s letter from the auto industry, GM is rushing out a pre-standard DSRC unit in its 2017 model cars. Because which is more important? Creating facts on the ground to help the auto industry squat on the spectrum, or making sure that DSRC units installed in cars are actually secure? Based on past history of the auto industry in the cybersecurity space, this is not a hard decision. For GM, at least, spectrum squatting rules, cybersecurity drools.

 

On the plus side, if you ever wanted to live through a cool science fiction scenario where all the cars on the highway get turned into homicidal killing machines by some mad hacker baddy, the NHTSA mandate for DSRC makes that a much more likely reality. In fact, it’s kinda like this Doctor Who episode. And lets face it, who wouldn’t want to drive in a car controlled by Sontarans? So, trade offs.

 

I explain all this in detail below . . . .

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