Cable and telco lobbyists block broadband infrastructure subsidies in California

Cable and telco lobbyists block broadband infrastructure subsidies in California: Frontier is the only major incumbent that’s been willing to play with the CASF program, and now that it’s taking over Verizon’s wireline systems it should be even more enthusiastic. But it’s clear that most would prefer to have CASF die a quick and quiet death. Cable companies won’t touch anything that might entangle them with state regulators. AT&T and Verizon are all about mobile, and aren’t interested in investing in wireline service. Most of all, cable companies and mobile carriers are upset that independent competitors are getting CASF subsidies.

This is the death knell for California's failed -- as measured by its goal to bring advanced telecommunications services to 98 percent of households by last year -- California Advanced Services Fund infrastructure subsidy program operated by the state's Public Utilities Commission.

The proposed legislative hill on which the seven-year-old CASF died would have pushed that goal to 2020 and retained a circa 2001 legacy DSL level Internet service standard to define eligible projects as those falling below that standard. In that regard, the CASF was already slowly dying relative to bringing modern telecommunications services to Golden State residents. The legacy incumbents anxious to preserve their de facto market monopolies from the threat of interlopers were only too happy to thrust in the dagger after years of challenging projects proposed for CASF subsidization.

The likely final straw was the PUC's approval last month of subsidies for a relatively large fiber to the premise build proposed to serve nearly 2,000 southern Nevada County premises. That would put FTTP infrastructure built by someone other than themselves squarely in their nominal service territories. Which from the perspective of the incumbent telco and cable companies, posed a dangerous precedent that could have opened the door to even larger builds.

State level telecom state-level infrastructure programs like the CASF are underfunded and technically substandard. They are also very vulnerable to incumbents efforts to hamstring or kill them outright. That circumstance makes the case for a robust federal telecommunications infrastructure initiative to bring fiber optic connections to every American home, business and school. The job is too big and too important to the nation's future to be left to the states.

Local governments seek federal preemption of Internet regulation

In the early 2000s as legacy cable companies contemplated offering Internet-protocol (IP) based services including Voice Over Internet Protocol (VOIP), they feared local governments that franchised their decades-old cable television services would demand they offer IP services to all neighborhoods within their jurisdiction. That prospect was very real possibility given their residents had other options for television service including over the air broadcast and satellite, but would need landline infrastructure built out in order to provide universal Internet access as demand for Internet service jumped. Also, by offering voice service via VOIP, cablecos began emulating telephone companies that are required to offer universal service to any premise requesting it.

To head off what to them appeared to be a costly prospect, cablecos heavily lobbied state governments to preempt the locals by giving state public utility commissions franchise authority over IPTV. While nominally limited to video services, for both cablecos and phone companies the move forestalled for many years any local requirements they upgrade and build out their Internet infrastructure since their video services are typically bundled as part of landline premise Internet service.

Now more than a decade later, local governments are getting in on the preemption game. Since their oxen were gored by their states at the behest of the legacy incumbent cablecos and telcos, they are looking to the federal government for relief. An example is the Federal Communications Commission’s order earlier this year to preempt statutes in two states barring local governments from building their own infrastructure. Doing so would allow local governments to get around the state sanction of the incumbents’ redlining practices.

In Arizona, local governments appear to be looking to the feds to resolve a dispute involving the city, a legacy cableco and Google Fiber over the city’s regulation of video services. “The City believes these questions will more likely be resolved more definitively in the future by the Federal Communications Commission or a similar authority,” said Scottsdale Chief Information Officer Brad Hartig in a statement. (H/T to DSLReports).

In California, two legacy telcos are making an argument that would place Internet services in a regulatory non man’s land, subject to neither state nor federal jurisdiction. Frontier and Verizon contend regulation of Internet service falls under federal jurisdiction per the FCC’s order classifying Internet as a common carrier telecommunications service under Title II of the federal Communications Act. But at the same time, they argue that order does not preempt California law giving the California Public Utilities Commission jurisdiction over legacy (non IP-enabled) telephone service but not Internet services. (Item here at Steve Blum’s Blog)

Title II universal service obligation could complicate, delay Comcast-Time Warner merger

New regulations issued this month by the U.S. Federal Communications Commission reclassifying Internet access service as a common carrier telecommunications service subject to universal service requirements under Title II of the Communications Act could complicate and delay Comcast’s planned acquisition of Time Warner Cable.

Comcast is currently the dominant Internet service provider in many markets and its domination would increase if the merger is consummated. In addition, Comcast typically provides Internet bandwidth at or above the FCC’s definition of 25Mbps. While the FCC is opting to forbear several Title II provisions, the universal service requirement is not one of them. 

Utilities regulators in states where the combined companies have major market presence could well require the combined entity to provide service to all customer premises in their service territories under the Title II universal access mandate as a condition of approval of the merger. Under current market practices, cable and telephone companies deploy infrastructure to deliver Internet services in limited footprints that serve only selected neighborhoods and parts of streets and roads. To gain a green light from the California Public Utilities Commission, Comcast is offering to spend $25 million on building out infrastructure to serve unserved communities. That’s mere table crumbs that won’t go far in a state as large as California as Steve Blum of Tellus Venture Associates notes on his blog.

Imposing universal service as a merger condition would likely significantly alter the financials of the deal and potentially doom it since shareholders of both companies are likely to object to any major capital construction expenditures to expand infrastructure.

The new rules take effect June 12, 2015. Meanwhile, legacy telephone and cable companies and their trade groups have gone to court to attempt to block them from becoming law. Presumably they could argue enforcement of the universal service obligation would subject them to immediate financial harm and the rules therefore must be put on ice until the merits of their legal arguments against them can undergo judicial review. By the same token, regulators could in turn opt to put the Comcast-Time Warner consolidation on hold pending the outcome of the litigation challenging the FCC’s Title II rulemaking.

California Internet infrastructure subsidy rules erect roadblocks for last mile fiber projects

A notable aspect of California’s eight-year-old program to subsidize the cost of constructing Internet telecommunications infrastructure is the general lack of participation by incumbent telephone and cable companies. In that regard, it has not fulfilled the usual public purpose of subsidy programs designed to help offset the costs of building and operating telecommunications infrastructure in high cost areas such as those used for landline telephone service.

The program, the California Advanced Service Fund (CASF), is administered by the California Public Utilities Commission, which is directed under California Public Utilities Code Section 281(a) to "administer the CASF to encourage deployment of high-quality advanced communications services to all Californians that will promote economic growth, job creation, and the substantial social benefits of advanced information and communications technologies..."

Instead, the CASF has subsidized mostly middle mile fiber and a small number of last mile wireline and wireless projects by non-incumbents. The last mile projects have nearly all been located in remote areas of California not served by the incumbent telephone and cable companies. Proposed projects elsewhere such as the Bright Fiber project in the Sierra Nevada foothills have been subject to lengthy bureaucratic delays under CPUC rules governing CASF eligibility.

The rules parse the state into thousands of discrete “unserved” and “underserved” areas where existing providers don’t sell specified advanced telecommunications services and authorize incumbents to challenge projects that would overbuild them and fall outside of these designated areas. The rules and a federally-funded project by the CPUC to map these areas have served to erect red tape roadblocks that stymie projects proposed by non-incumbents as project proposers, incumbents and consumer advocates argue over the mapped territories and boundaries. These parochial disputes have chewed up enormous amounts of time and resources and delayed construction of much needed telecommunications infrastructure, defeating the public policy intent of Section 281(a).

While California is not among about 20 states that have statutes designed to protect incumbents from overbuilders, the CASF rules have operated to produce a similar result, leaving millions of California residents without robust wireline Internet service options. California innovated much of today’s information and communications technology and is rightly regarded as a leader in the field. However, when it comes to advanced telecommunications infrastructure, the Golden State is a laggard.

No fiber to the prem in Silicon Valley, but a raft of slow, overpriced options

Wolverton: I’ve got the South Bay broadband shopping blues | SiliconBeat: Willow Glen

Tech Files columnist TroyWolverton goes shopping for Internet service on the California Public Utilities Commission's website but finds the service choices wanting, leaving the legacy incumbent telephone and cable company duopoly as the only viable options.

I did a little shopping of my own on the site a few months ago and like Wolverton, found it identified Megapath Networks as a provider at the same options and prices Wolverton found. But it turned out the company couldn't service my location even after the sales rep insisted it could.

Someday -- hopefully soon -- Wolverton's account will be looked back upon as a description of the primitive and often frustrating state of pre-fiber to the premise Internet service.

AT&T falls short on California landline infrastructure upgrades

AT&T California has not met requirements for the build out of infrastructure to make Internet-based video services available to at least 50 percent of its California telephone service area as of year-end 2012. 

That’s according to the California Public Utilities Commission’s Sixth Annual DIVCA Report for the year ending December 31, 2012 (issued July 31, 2014). DIVCA – the Digital Infrastructure and Video Competition Act of 2006 – specifies a five-year build out period of 2008 through 2012. (The relevant reference is at page 9 of the report.)

AT&T California qualified for relief from the five-year infrastructure build out requirement under a DIVCA exception in cases where a provider has been unable to sell Internet video services to at least 30 percent of households in its telephone service area.

This in turn has resulted in a significant customer quality issue. Many households in AT&T California’s telephone service territory are unable to order landline-delivered Internet services since AT&T video services (branded as U-Verse and which includes bundled Internet access and voice service) are delivered over decades-old copper cable plant. Instead, these customers are offered only substandard, obsolete dialup Internet service that cannot support the delivery of video services.

California screamin: Internet policy quagmire fosters failure

Plan for rural broadband collapses | The Press Democrat
This story illustrates the real world consequences of what happens when legacy incumbent wireline Internet providers control government subsidy programs designed to help cover the cost of deploying Internet infrastructure. They refuse to accept the subsidies themselves for high cost areas and lobby to influence the eligibility rules so that others can't easily qualify for funding.

These comments in the story from Cathy Emerson, manager of two consortia involved in expanding Internet access and Mitch Drake, head of the company that applied for subsidy funding from the California Public Utilities Commission, sum up the sorry situation:

“We're looking at a significant Catch-22,” Emerson said. “The federal
and the state programs are trying very hard to make use of legislative
moneys that have been collected, intended to be used for broadband
deployment. And yet the very language of the legislation has been so
effectively edited to the favor of the incumbents that it's extremely
difficult to try to offer services to these rural-most pockets.”

“I call this the great stalemate,” said Drake. “There's a huge need in
Northern California, and we've got a program that was designed to take
care of the need, and we've got incumbent carriers who made this
financial decision, for one reason or another, not to serve these rural
communities. But at the same time they are the biggest opponents,
preventing anyone from doing anything about it.”

It's going to get even harder for non-incumbent providers and local governments to qualify for the CPUC's California Advanced Services Fund network construction subsidy dollars in this year's funding round under revised rules recently adopted by the CPUC. Steve Blum has the depressing details in this blog post.

California unlikely to subsidize community fiber Internet infrastructure over near term

The California Public Utilities Commission’s (CPUC) construction subsidy fund for Internet infrastructure won’t likely help offset the cost of building community owned fiber to the premise networks.

The CPUC’s California Advanced Services Fund (CASF) limits grant and loan subsidies to infrastructure projects that would serve either an “unserved area,” defined in CPUC Decision 12-02-015 as not served by any form of wireline or wireless facilities-based broadband such that Internet connectivity is available only through dial-up service or an “underserved” area defined as an “where broadband is available, but no facilities-based provider offers service meeting the benchmark speeds of at least three megabits per second (mbps) download and at least one mbps upload.” The CPUC retroactively revised the definition in 2012 resolutions T-17362 and T-17369 as areas “where broadband is available, but no wireline or wireless facilities-based provider offers service at advertised speeds of at least 6 mbps download and 1.5 mbps upload.”

Under either definition, both fixed and mobile wireless providers could block CASF funding of a community fiber project. And under the definition adopted in the 2012 resolutions, they wouldn’t even have to actually provide service to an area. They could merely claim they advertised service there at the specified 6/1.5 Mbs speeds.

Senate Bill 740, legislation re-authorizing the CASF that’s making its way to the desk of Gov. Jerry Brown incorporates by reference the definitions of unserved and undeserved areas in Decision 12-02-015.

The bill would also give incumbent wireline providers that have not built out their networks to serve all premises effective veto power over any community-based project to reach underserved households -- typically those in areas out of reach of DSL or cable Internet service or having access to slow DSL in areas where aging, poor quality copper cable plant (illustrated in the photo below) cannot support higher speeds. The bill bars funding of these projects “until after any existing facilities-based provider has an opportunity to demonstrate to the commission that it will, within a reasonable timeframe, upgrade existing service.” 

"Reasonable timeframe" isn’t defined in the bill and thus would likely be defined by incumbent telcos that told regulators and consumers since the early 2000s that they were building out their DSL service to reach them. (They’re still waiting more than a decade later, providing an operative definition of what's reasonable). The bill would also give incumbent telcos and cablecos the ability to stymie community fiber projects built by local governments simply by applying for CASF funding.

California lawmakers revise legislation governing Internet infrastructure subsidy program

California lawmakers are scaling back a previously proposed increased appropriation for the state’s broadband infrastructure grant and loan subsidy program. As amended this week, SB 740 would also redefine the policy goal of California Public Utilities Commission’s California Advanced Service Fund (CASF) to fund projects to ensure broadband access to at least 98 percent of California households by 2016. SB 740 would also prioritize funding for those areas of the Golden State deemed to be “unserved.” The CPUC has defined this to mean “an area that is not served by any form of wireline or wireless facilities-based broadband, such that Internet connectivity is available only through dial-up service or no broadband service can be identified.”

From a practical perspective, this means only modest wireless Internet infrastructure projects will be subsidized by the CASF since unserved areas per the CPUC’s definition are likely to be very thinly populated. These will also likely be very low budget projects per the CPUC’s decision to require project sponsors kick in 30 percent of the project costs for unserved areas.

The CPUC has also written the CASF rules to discourage community fiber builds by allowing projects in “underserved areas” only if the area has no wireline or wireless service offered at advertised speeds of at least 6 mbps download and 1.5 mbps up. That means an area that is only partially served by an existing wireline providers could not be overbuilt to fill in the coverage gaps. Under the rule, such project would also not qualify since wireless providers could merely advertise service at the minimum speeds, further slicing and dicing a potential fiber service area such to render the project ineligible under the rules. On top of that, the rules require community fiber project sponsors to kick in 40 percent of the project costs – an onerous burden for newly formed entities.

The upshot is California policymakers will end up going through the motions and the CASF monies left largely unspent as sizable areas of the state unserved by the incumbent telephone and cable companies are consigned to technologically substandard, low value Internet service options.

California PUC-created nonprofit warrants review

Today’s Sacramento Bee reports on the increased legislative scrutiny being applied to the California Public Utilities Commission and whether it is adequately fulfilling its mission of ensuring safe and reliable utility service.

According to the Bee, a California Senate committee is requesting that the state’s Fair Political Practices Commission investigate nonprofits established by the PUC for “possible conflicts of interest or bequesting violations” including the California Emerging Technology Fund (CETF).

Lawmakers should also look into whether the CETF is fulfilling its stated mission “to close the ‘Digital Divide’ by accelerating the deployment and adoption of broadband to unserved and underserved communities and populations.”

A review of the CETF website, its annual reports and a summary of 2013 grant investments shows no funding awarded to advance the direct, tangible deployment of advanced telecommunications infrastructure to serve residential premises despite findings by a state broadband task force in 2008 that nearly 2,000 California towns and communities lack broadband access.

Without the infrastructure for broadband access, promoting its adoption is putting the cart before the horse and nothing more than window dressing. This is policy failure piled on top of market failure.

California legislation would expand Internet infrastructure subsidy fund

Introduced February 22, California Senate Bill 740 boosts the size of the California Public Utility Commission's California Advanced Services Fund (CASF) infrastructure subsidy fund from $125 million to a maximum of $325 million and extends its life from 2015 to 2020.

Now if only the PUC would only make the CASF funding freely available to community fiber projects, it might actually achieve some real benefit for Californians, particularly those residing in areas lacking wireline Internet connections from incumbent telcos and cable companies.

California PUC rectifies its mischaracterization of Internet infrastructure subsidy fund

Several months ago, this blog called out the California Public Utilities Commission (CPUC) for incorrectly asserting the public policy goal of its program to subsidize the build out of Internet infrastructure in the Golden State was instead to encourage “the adoption of broadband.”

To its credit, the CPUC has rectified its gross misstatement of the law authorizing its $100 million plus California Advanced Service Fund (CASF). It did so this week, buried 18 pages deep into a proposed order that would loosen eligibility for CASF infrastructure loan and grant funding to include entities not holding a Certificate of Public Convenience and Necessity (CPCN) or a Wireless Identification Registration (WIR):

“We wish to make clear that although we propose to modify the CASF eligibility requirements to include both for profit and nonprofit broadband infrastructure providers, it is not our intent to change the focus of the CASF program. The CASF was created to fund the deployment of broadband infrastructure in unserved and underserved areas of the state, rather than the adoption of broadband services.” (Emphasis added)

The CPUC should also make it easier for consumer owned, community-based providers such as telecom cooperatives to access CASF funding for last mile (to the premises) Internet infrastructure construction – a critical infrastructure link singled out for attention in the proposed order. A key need of these providers is technical assistance grant funding to retain engineers and expert consultants to develop preliminary network designs and business case analyses. These deliverables would help ensure that the contemplated projects pencil out and would generate sufficient revenues to justify the prudent investment of CASF funds.

The CPUC should also revisit its unworkable, hair splitting exercise in futility of attempting to map out what neighborhoods are considered “unserved” and “underserved” based on throughput speed and census block groups. The inherent variation of legacy telco infrastructure Internet service from one address to the next doesn’t lend itself to these broad brush delineations. Internet service available at a given premise can be entirely different from another one just a quarter mile or a half block away.  Some overlap or "overbuilding" as it is called by incumbent providers will the inevitable consequence of progress.  But it must occur if the United States is to remedy what President Barack Obama decried in his State of the Union speech at the beginning of this year as the nation's "incomplete" Internet telecommunications infrastructure.  A network filled with holes does not a network make.

SB 1161 doesn't touch California's real telecom problem

There was a fair amount of mainstream media coverage this week of pending California legislation that would state public policy that the state's Public Utilities Commission does not have regulatory jurisdiction over Internet protocol (IP) services.  As this Sacramento Bee story reports, consumer groups fear SB 1161 would give monopoly incumbent telcos too much free reign as they migrate away from plain old telephone service (POTS) delivered over twisted pair copper.  The telcos and the bill's author, Sen. Alex Padilla, support the policy to remove regulatory uncertainty and allow unfettered expansion of the Internet and IP-delivered telecommunications services to homes, businesses and institutions.

SB 1161 would neither help nor hinder that goal.  California's real problem is incomplete Internet infrastructure that leaves millions of Californians disconnected from the Internet.  Since telecommunications services tend to be a natural monopoly market, the fears of consumer groups of any form of reduced regulatory oversight are understandable.  However, their concerns would make more sense if all Californians had fiber connections to the Internet via a monopolistic provider.  They don't.  California's telecommunications market suffers from market failure because the high cost business models of the incumbent telcos (and cable companies) don't allow them to achieve that level of service.  Accordingly, the CPUC should do a better job of assisting alternative, lower cost business models emerge -- such as consumer-owned telecom cooperatives -- take root and thrive.  So far, the CPUC has failed to do so.

California PUC misstates public policy goal of Internet infrastructure subsidy fund

The California Public Utilities Commission (CPUC) has adopted a decision implementing a grant and loan program to subsidize the construction of advanced telecommunications infrastructure in the Golden State through its California Advanced Services Fund (CASF). Under urgency legislation enacted in 2010, SB 1040, $100 million was allocated for grants and $15 million in revolving loans for the CASF's Broadband Grant and Revolving Loan accounts. The CASF is one of several subsidy funds administered by the CPUC to help offset the cost of providing telecommunications services in areas of the state where it is costly to provide them in order to make them more widely available.

The CASF is codified at California Public Utilities Code Section 281(a) which directs the CPUC to "develop, implement, and administer the California Advanced Services Fund to encourage deployment of high-quality advanced communications services to all Californians that will promote economic growth, job creation, and the substantial social benefits of advanced information and communications technologies..."

While not stated as a finding of law in a draft of the decision issued for public comment prior to its adoption earlier this week by the commission, the decision adopted by the CPUC nevertheless states on page 3:

"We emphasize that the ultimate goal of the CASF program is to increase the adoption of broadband."

A plain reading of that assertion does not comport with California Public Utilities Code Section 281(a), which clearly states public policy intent that the goal of the CASF is "deployment of of high-quality advanced communications services to all Californians."

The CPUC's declaration is also illogical. In order to increase the adoption of broadband, infrastructure must first be built to deliver it. That's the commission's stated purpose of the CASF Broadband Grant and Revolving Loan -- to help capitalize the construction of infrastructure capable of providing premises Internet connectivity in high cost areas where it hasn't been deployed. Moreover, the CPUC's decision distinguishes adoption from infrastructure deployment, noting at page 9 that applicants for CASF-funded infrastructure projects must submit a plan to encourage adoption of the broadband service in the proposed area(s) including the number of households the applicant estimates will sign up for the service (the take rate), the marketing or outreach plans the applicant will employ to attract households to sign up for the service.

Without deployment of the necessary infrastructure, broadband simply isn't available as hundreds of thousands of Californians trying to get by on dialup and satellite are painfully aware. And if broadband isn't available at any price, it cannot be adopted by anyone. First things first.

FCC issues proposed order creating Connect America Fund

The U.S. Federal Communications Commission has released its proposed order revamping the Universal Service Fund (USF) that has for decades subsidized plain old telephone service (POTS) in high cost areas. The USF will now be directed to support Internet connectivity as the Connect America Fund (CAF). The CAF will instead subsidize telecommunications infrastructure to serve what the FCC estimates to be 18 million Americans who involuntarily remain off the Internet “grid” because it costs too much to connect them.

Whether the proposed order would achieve that and do so in a timely manner is an open question. The executive summary of the rather inscrutable 759-page document states that “[w]hile continuing to require that all eligible telecommunications carriers (ETCs) offer voice services, we now require that they also offer broadband services.” But a close reading of the order shows no indication the FCC will expand the telcos’ existing common carrier obligation to provide voice service to all (and not just some) premises in their service areas to encompass Internet. For example, paragraph 1090 on page 398 of the proposed order:

Under section 214 of the Act (the federal Communications Act of 1996), the states possess primary authority for designating ETCs and setting their “service area[s],” although the Commission may step in to the extent state commissions lack jurisdiction. Section 214(e)(1) provides that once designated, ETCs “shall be eligible to receive universal service support in accordance with section 254 and shall, throughout the service area for which the designation is received . . . offer the services that are supported by Federal universal service support mechanisms under section 254(c).” Although we require providers to offer broadband service as a condition of universal service support, under the legal framework we adopt today, the “services” referred to in section 254(e)(1) means voice service, either landline or mobile. (Emphasis added).

That sounds like POTS and not Internet. In addition, there is no reference in the proposed order to Title II Section 214(e)(3) of the Communications Act of 1996 that empowers the FCC to "determine which common carrier or carriers are best able to provide such service to the requesting unserved community or portion thereof and shall order such carrier or carriers to provide such service for that unserved community or portion thereof." So it appears that telcos could continue to not serve some areas even while accepting CAF subsidies to serve others -- thereby perpetuating the existing problem of broadband black holes.

It’s also unclear from the proposed order how unserved areas in states where the incumbent telco has relinquished its carrier of last resort status would be able to benefit since these carriers would appear to be ineligible for CAF subsidies. Or whether telcos, even if eligible for CAF subsidies, would accept them. In California, for example, telcos have generally shunned generous subsidies available through the California Public Utilities Commission to offset the cost of constructing infrastructure to provide Internet connections to premises in unserved and underserved areas of the state.

Finally and perhaps most importantly, given that many people have and continue to “cut the cord” to landline voice service, will there be enough money to be had from phone bill surcharges that have historically funded the USF to sustain the CAF?