U.S. Court of Appeals upholds FCC rule legitimizing broadband black holes

The Wall Street Journal reports today the U.S. Court of Appeals has upheld a Federal Communications Authority rule adopted in the spring of 2007 prohibiting local governments from imposing "unreasonable" requirements on telephone companies seeking franchises to offer enhanced broadband-based video services.

The rule is designed to stop local governments from using their FCC cable franchise granting authority to impose build out requirements on franchise applicants, preserving broadband black holes in these communities.

Here are the relevant excerpts from a previous post on the FCC rule.

AT&T audaciously claims "broadband access to all of its California service area"

One of the physical principles of cosmic black holes is no information can be known about what's inside of them because no information can escape the powerful gravity of the singularity at their centers.

Clearly, that same principle also applies to the numerous broadband telecommunications black holes in California based on a recent AT&T filing with the California Public Utilities Commission. In the introduction to the April 16, 2008 filing, AT&T asserts it "now offers broadband access to all of its California service area."

Apparently the unfortunate residences and small businesses who cannot order wireline-based broadband service from AT&T such as DSL or the telco's next generation U-Verse bundled service offering higher speeds than AT&T's legacy DSL service haven't gotten the message. Of course not. In AT&T's universe, they simply don't exist and nothing can be known about them. Out of sight, out of mind.

Perhaps AT&T is fudging by counting the limited areas where it offers its EDGE wireless network service that provides throughput not much better than the antiquated 1994 Federal Communications Commission "broadband" standard of 200Kbs. No dice. By today's standards, that's not broadband. Ditto satellite, which the telco deployed throughout much of the U.S. -- as if the entire nation was situated in the remote regions of the Arctic Circle -- in 2006 via a reseller agreement with WildBlue.

The AT&T filing objects to proposed CPUC rules designed to reduce California's digital divide and speed broadband infrastructure build out by requiring telcos and cable providers to report by census tract where they provide broadband and delineated by various speed tiers, i.e. less than 1 mbps; 1-5 mbps; and 5-10 mbps. The AT&T filing asserts CPUC has no authority to regulate broadband services because they are information services preempted by Federal Communications Commission jurisdiction.

Tennessee broadband build out bloodbath predicted for 2008 legislative session

Tennessee state Senator Tim Burchett of Knoxville is predicting there will be a “bloodbath” in the 2008 legislative session as lawmakers once again entertain AT&T's request to preempt local governments and put the state in charge of broadband franchises that include delivery of high bandwidth IPTV video service.

Local governments won out this year when they convinced lawmakers Ma Bell was trying to avoid local government demands that AT&T build out its infrastructure to serve all of their residents and businesses. AT&T doesn't want to make that investment and hopes legislation making the state government the sole regulator will allow it to avoid negotiating with local governments.

“We believe that [the AT&T legislation] weakens consumer protections because there are no build-out requirements,” Carole Graves, communications director for the Tennessee Municipal League, told the Knoxville News Sentinel in this article via Free Press.

Telcos protest California PUC's draft build out requirements

When telcos advocated the enactment of California's Digital Infrastructure and Video Competition Act of 2006, they argued it would create a more competitive marketplace and speed the deployment of broadband-based telecommunications services to consumers.

However, judging from their recently filed comments on the California Public Utilities Commission's proposed rules implementing the statute's build out requirements, telcos could hardly be described as in a hurry to expand their systems and heartily embracing an open, competitive market.

They protest draft rules that would require franchisees to include "clearly stated build-out milestones " that "demonstrate a serious and realistic planning effort." In addition, the draft rules would require franchisees to "clearly state the constraints affecting the build-out" and "clearly delineate and explain" areas within the franchisee's service area that pose "substantially higher" costs.

The small telcos don't want to be held to the same build out requirements as the larger players like AT&T and Verizon. And the big guys don't want to provide customer data by census tract or report on how they are utilizing wireless technology to deliver broadband services.

One might think broadband providers would support regulation that actually encourages them to offer more services to greater numbers of customers. Nearly all other regulated industries desire this and typically complain regulation constrains their ability to offer new products and services to larger numbers of customers. But it's just the opposite in the perverse broadband marketplace. The providers want regulation that allows them to limit rather than expand their services and serve fewer rather than more customers. While providers may think less is more, less is truly less and explains why the United States is rapidly falling behind other developed parts of the world when it comes to broadband access and choices.

Local governments in federal courts to block telcos' end run to the FCC

Telcos adamant to avoid local government broadband infrastructure build out requirements went to Congress last year seeking legislation preempting local government authority to award "video franchises" and place it in the hands of the feds.

When that failed, the telcos then directed their efforts at state legislatures to get the locals off their backs. They have been successful in at least a dozen states, getting legislation with limited build out requirements that allow them to bypass local areas they don't want to serve, effectively making the digital divide law.

The telcos apparently want to buy insurance at the federal level despite their failure to get Congress to go along. So they're doing an end run around Congress by going to the Federal Communications Commission. Earlier this year, the FCC went along with them and promulgated regulations barring local governments from requiring telcos to build out their broadband infrastructure to serve an entire community and also giving the locals a short time frame to act on telco applications for franchises.

Not so fast, a coalition of local government and non-profit groups say. This week, they filed briefs in the U.S. Court of Appeals for the Sixth Circuit arguing the FCC lacks statutory to do so since the telcos failed to get federal legislation enacted last year.

More telco baloney courtesy of Qwest

Telco Qwest is having a fit over local Colorado governments that want it to tell them where and when it plans to build upgraded broadband infrastructure to enable it to offer Internet Protocol TV.

The Denver-based telco complains that doing so is divulging trade secrets and would tip off competing cable companies of its plans.

Baloney! Markets are made by what is actually offered, not what is planned. The real issue is all about buildout. All too often, the telco/cable duopoly wants to put in place incomplete systems that leave entire neighborhoods without access to advanced broadband services. Local governments are right to demand providers serve all of their residents and not leave gaping broadband black holes.