Harold Feld

Cleveland and the Return Of Broadband Redlining.

[Commentary] I am the last person to deny anyone a good snarky gloat. So while I don’t agree entirely with AT&T’s policy blog post taking a jab at reports of Google Fiber stumbling in deployment, I don’t deny they’re entitled to a good snarky blog post. (Google, I point out, denies any disappointment or plans to slow down.) “Broadband investment is not for the feint hearted,” But the irony faeries love to make sport.

The following week National Digital Inclusion Alliance (NDIA) had a blog post of their own. Using the publicly available data from the Federal Communications Commission’s Form 477 Report, NDIA showed that in Cleveland’s (OH) poorest neighborhoods (which are also predominantly African American), AT&T does not offer wireline broadband better than 1.5 mbps DSL – about the same speed and quality since they first deployed DSL in the neighborhood. This contrasts with AT&T’s announcement in August that it will now make its gigabit broadband service available in downtown Cleveland and certain other neighborhoods. There are two important, but rather different issues here — one immediate to AT&T, one much more broadly with regard to policy. The more important issue is the return of redlining on a massive scale. Thanks to improvements the FCC has made over the years in the annual mandatory broadband provider reporting form (Form 477), we can now construct maps like this for neighborhoods all over the country, and not just from AT&T. As I argued repeatedly when telecommunication companies, cable companies and Silicon Valley joined forces to enact “franchise reform” deregulation in 2005-07 that eliminated pre-existing anti-redlining requirements – profit maximizing firms are gonna act to maximize profit. They are not going to spend money upgrading facilities if they don’t consider it a good investment.

Can Obama Stop The Stalling On Clinton Appointees. Or: “It’s Raining Progressives, Hallelujah!”

[Commentary] As we end 2016, we have an unusually large number of vacancies in both the executive branch and the judiciary. As anyone not living under a rock knows, that’s no accident. Getting President Barack Obama appointments approved by the Senate was always a hard slog, and became virtually impossible after the Republicans took over the Senate in 2015. This doesn’t merely impact the waning days of the Obama Administration. If Hillary Clinton wins the White House, it means that the Administration will start with a large number of important holes. Even if the Democrats also retake the Senate, it will take months to bring the Executive branch up to functioning, never mind the judiciary. If Clinton wins and Republicans keep the Senate, we are looking at continuing gridlock and dysfunction until at least 2018 and possibly beyond.

Understanding the Ninth Circuit’s Decision in AT&T Mobility v. FTC

[Commentary] The Ninth Circuit issued a fairly important decision limiting the authority of the Federal Trade Commission (FTC). Unfortunately, certain articles, combined with some overwrought commentary, have generated a lot of confusion. To summarize:
1) This has nothing to do with the Federal Communications Commission’s determination to reclassify broadband as Title II. The court was extremely explicit on this point.
2) There is no “gap in consumer protection” for broadband services – unless Congress or a future FCC reverses the Title II determination. As long as broadband remains a Title II service, the FCC can protect consumers from bad behavior by broadband service providers.
3) Beyond the broadband world, the case has fairly broad and uncertain applications. Arguably, Google could escape FTC jurisdiction by owning Google Fiber, and Amazon could escape FTC jurisdiction by registering its truck fleet as a common carrier freight company regulated by the FMCSA.

Ultimately, however, this case creates real problems for consumer protection by creating significant concerns about the FTC’s authority in a world where large corporations often engage in multiple lines of business – some of which may have “exempt status” under Section 5(a)(2). Hopefully, the FTC will seek review by the full Ninth Circuit, which would be wise to overturn this unfortunate case.

Farewell To AT&T’s Jim Cicconi.

It may seem odd for me to say, and meaning no offense to his replacement Bob Quinn, but I am sorry to see Jim Cicconi retire from AT&T at the end of August. For those who don’t play in this pond, Cicconi has been AT&T’s Lobbyist in Chief here in DC since 2005. It may therefore seem odd that I am sorry to see him go, particularly since Cicconi was so damned good at his job. But, as I have said many times before, I’m not here because companies are evil, nor do I believe the people working for them necessarily delight in crushing consumers, strangling puppies and tossing destitute widows and orphans on the street in rags in the dead of winter.

Update on Municipal Broadband Decision. The Fate of Pinetop, NC

[Commentary] Greenlight, the muni provider of Wilson (NC), took advantage of the Federal Communications Commission’s 2015 municipal broadband order and began offering gigabit broadband in Pinetop (NC), population 1400. Pinetop lies in Edgecomb County, next door to Wilson County. Under the 2010 North Carolina anti-muni law, Greenlight could serve anyone in Wilson County but not go outside Wilson County to neighboring Edgecomb County. But Wilson decided to take a shot and honor Pintetop’s request to provide service (Greenlight already provides electric service in Pinetop as a munipal electric provider, so it wasn’t much of a leap). The legal situation on this is now somewhat complicated. The 6th Circuit had not stayed the FCC’s preemption order in 2015, so it was totally legal for Greenlight to offer service. What is unclear now is how to read NC law now that it is “un-preempted” by the Sixth Circuit overturning the FCC. I admit I have no idea how to even begin to answer this question.

FCC Loses It’s Muni Broadband Test Case. What Comes Next?

[Commentary] While that seems obvious, we often miss it in policy debates. But it is rather important to keep in mind when reading Tennessee v. FCC. In a case released August 10, the Sixth Circuit reversed the Federal Communications Commission (FCC) 2015 Order preempting restrictions the state of Tennessee and the state of North Carolina imposed on their municipalities with regard to providing broadband service. While Commissioners Pai and O’Reilly are certainly entitled to their victory laps, it is equally important to applaud Chairman Wheeler and Commissioners Rosenworcel and Clyburn for doing what they believed was both the right policy and the right call under the law. The petitions from the City of Wilson, NC, and from the Electric Power Board of Chattanooga, TN, raised novel questions of law. The FCC’s Order was a test case. On a very narrow and murky legal question, the FCC majority bet wrong — at least according to the 6th Circuit. I thought the FCC majority had the better argument. But I can’t say the Sixth Circuit was utterly wrong in holding the contrary.

T-Mobile’s Zero-Rating of Pokémon GO Raises Questions for the Open Internet

Beginning July 19, T-Mobile is offering a limited-time promotion tied to the wildly popular augmented reality game Pokémon GO, in which the mobile data used by the game will not count toward a customer’s data cap. This is yet another form of zero-rating, a practice that can raise serious concerns about competition policy, network neutrality, and consumer choice.

Amidst a global Poké-craze, we shouldn’t lose sight of what this may portend for the future of the open Internet. So we want to take the opportunity to raise a number of questions about this promotion which would also be important to answer for any other zero-rating service proposal. Before concluding anything about this promotion or any similar plans that may be proposed, it is important to better understand their potential dangers and benefits. Whether or not the zero-rating of Pokémon GO constitutes an unreasonable interference or disadvantage, it at least raises important questions that deserve close and immediate scrutiny.

NCTA Shocked — SHOCKED! — to Discover Ex Parte Process At FCC.

[Commentary] Every now and then, I am reminded that the cable news networks such as Fox and MSNBC are members of the National Cable & Telecommunications Association (NCTA). But seeing this recent blog post reminded me. While faux outrage and hypocrisy are hardly rare in Policyland, you rarely find this level of self-righteous sanctimony outside of cable news. As some folks may recall, I recently opined that AT&T choosing to sulk like Achilles in his tent rather than engage meaningfully in the ongoing rulemaking process.

NCTA — which also opposes the business data service (BDS, formerly special access) proceeding and has adopted the same strategy of acting like a disappointed 6 year old — chooses to deliberately misconstrue this as something other than the Federal Communications Commission’s standard, open ex parte process. What magnifies this almost to the level of self-parody is that NCTA is engaged in exactly this behavior on set-top boxes (STBs), where it has popped out with a sudden alternative #ditchthebox to the FCC’s #unlockthebox proposal. In all cases, of course, NCTA paradoxically insists that any refusal to negotiate around their proposals is somehow a sign that the FCC has impermissibly pre-decided. But if the FCC considers anyone else’s response to their proposals, or engages with stakeholders outside of the comment and/or reply comment period, it is a “smoke filled room.”

The FCC Sets the Ground Rules For Shutting Down The Phone System — And Sets the Stage For Universal Broadband.

[Commentary] Here’s the funny thing about the world. The two Orders the Federal Communications Commission will vote on July 14 probably have more impact on the future of our communications infrastructure than the Title II reclassification of broadband. But like most momentous things in technology, no one notices because they are technical and everyone’s eyes glaze over.

In particular, no one notices the sleep inducing and incredibly vaguely named item “Technology Transitions,” we are talking about the conclusion of a 4 year proceeding on how to shut down the legacy phone system and move all our national communications platforms to a mix of digital platforms. The old phone system still provides the backbone of our communications system of shiny digital thingies we take for granted. The old copper line phone system is also the workhorse of most ATMs, retail cash registers, and thousands of other things we take for granted every day. The Federal Communications Commission made this a values driven transition. In a bipartisan unanimous 5-0 vote back in January 2014, the FCC rejected the idea of making the Tech Transition a “get out of regulation free zone” and adopted four basic principles to guide the transition: Universal Access, Competition, Consumer Protection and Public Safety. As a result, for once, for once, we actually have a chance to prevent the inequality before it happens. It took 100 years, but if there is one thing Americans took for granted, it was that we all had the same phone system and could all communicate with each other on equal terms. The rules the FCC adopts will make it possible to preserve this principle of universal access. Because this network forms the backbone of the broadband network, if we work together and don’t blow it, we can achieve the same success with broadband that we achieved with basic telephone service.

AT&T’s Business Data Service Hissy Fit Is Bad Strategy.

[Commentary] Hell hath no fury like an incumbent local exchange carrier (ILEC) scorned. So it is perhaps no surprise that AT&T has decided to heap much scorn on Verizon for playing smart and flipping sides on the debate on how to improve regulation of the Business Data Service (BDS), nee special access. While perhaps understandable from an emotional perspective, this response is — to use a technical legal phrase — silly. Worse, taken to its logical extreme, it has the same corrosive effect on rulemaking as the accusation of “flip flopping” has on politics. We keep saying we want people to actually negotiate and look for compromises that reflect the changing reality. But when someone actually says “OK, you know what, lets recognize that reality isn’t so black and white as people make it out and we should look for a workable compromise,” then everyone is like “Flip Flopper! How can we possibly take you seriously now that you will no longer fight to the death!"

As I explain below, AT&T (and other ILECs) would gain much more by joining Verizon in negotiating for a transition away from the ILEC monopoly on the high capacity data circuit to a more competitive market structure. Rather than throwing a hissy fit, AT&T should embrace its usual path of shrewd negotiation.