[CalFiber] Letter to Biden FCC Transition team on abolishing digital redlining - deadline COB Nov 23rd

Ernesto Falcon ernesto at eff.org
Thu Nov 19 07:06:59 PST 2020

So how the FCC addresses it can only be done through a rulemaking 
process with comments and an Order and then vetted by the courts.

My take? Legitimate barriers need to be knocked down for the obligation 
to take effect because the restraint on the regulations are reasonable 
discrimination. I just do not see how the ILECs have a reasonable 
discrimination argument across their footprint given their revenues and 
existing rights of way access.

I think any new transition to a new infrastructure will take a number of 
years, and if you have it baked in the front end that you can't leave 
certain neighborhoods behind, they will put that into their plan. What 
we have in front of us is the discontinuation of the transition to fiber 
by the ILEC and now an effort to cut off copper and get people to just 
use phones. That is all happening because it is unregulated.

On 11/18/2020 9:37 PM, Dane Jasper wrote:
> So would a Cable company have to upgrade to DOCSIS 4.0 in all areas if 
> they did so in one? On what time-line? The devil's in the details - 
> I'm sure they want to upgrade everywhere, eventually. But what about 
> plant which cannot support it - there may be reasonable technical 
> arguments that some areas can be easily upgraded while others cannot.
> Regarding the incumbent telco, they've got conduit in most places, but 
> direct buried cable in others. And conduits may be full, poles 
> overloaded, etc. Just don't see how you mandate deployment or uniform 
> upgrades, unless you are in a regulated, rate-of-return monopoly 
> environment, the way that electricity is today, or telecom used to be.
> I'm all for building to everyone - and for example, today we are 
> building out fiber to the home in Oakland, and we are building "the 
> flats" right now, while the Oakland hills (which are higher income) 
> are planned for a subsequent project, timeframe TBD. Call it 
> reverse-redlining, but really it's driven by the complexity and cost 
> of the project in the hills: winding streets, more issues with poles, 
> lower density, etc. We build where it is most feasible, and turns out 
> that's higher density and lower income in many cases.
> -Dane
> On Tue, Nov 17, 2020 at 4:22 PM Ernesto Falcon <ernesto at eff.org 
> <mailto:ernesto at eff.org>> wrote:
>     I think it would be straightforward to differentiate between CLECs
>     and ILECs here simply on the premise that ILECs already have the
>     connections throughout the community built from their legacy
>     deployment and are undergoing a transition with pre-existing
>     rights of way whereas CLECs are entering and expanding as fiber on
>     the front end. If the day came and Sonic covered all of SF, then
>     future upgrades would have to be equal throughout the network just
>     like it would be for the ILEC, but we're not there yet. Worth
>     flagging that California state law already has a prohibition on
>     discrimination based on socio-economic status now for broadband,
>     which is why the CPUC is asking its questions on redlining.
>     The federal law prohibits unreasonable discrimination, not
>     */reasonable/* discrimination. That is why you have net neutrality
>     but also reasonable network management exceptions. So you couldn't
>     do this kind of mandate for rural areas because the private entity
>     has a fairly straightforward argument as to why they can't upgrade
>     without some sort of government support. I also think real
>     barriers in local areas you listed out would be legitimate
>     arguments as well to read in favor of the provider, but I think
>     that applies to new entrants, not established incumbents. I do not
>     think the ILECs have a reasonable discrimination argument for not
>     upgrading their entire copper footprint to fiber in densely
>     populated cities given that they already have the rights of way
>     that overcome the barriers you listed. On top of that, AT&T
>     heading towards cutting off the copper line in its entirety
>     without replacing it with fiber has to be confronted with
>     regulation given that the copper retirement offering clearly
>     didn't work.
>     To your question about cable, no this wouldn't compel them to
>     deploy fiber to the home. But an upgrade to the cable network
>     would have to be done on a non-discriminatory basis throughout the
>     footprint within a reasonable period of time under an
>     anti-redlining provision. And that is the issue here, redlining.
>     They have pre-existing connections to these communities that they
>     are intentionally neglecting with the transition while high-income
>     users in those same cities are getting fiber, and that just should
>     not be allowed to continue/will take a lot of regulatory work to
>     confront and stop.
>     On 11/17/2020 3:51 PM, Dane Jasper wrote:
>>     Certainly understand the goals of full deployment, and our own
>>     analysis of the 477 info supports the fact that more fiber is
>>     deployed in areas with higher incomes.
>>     Universal service was a concept when cable companies were granted
>>     monopoly franchises for television services. They'd generally be
>>     required to provide service throughout a city, with some
>>     carve-outs for things like long private property driveways that
>>     they were allowed to charge more for - but they couldn't skip
>>     sections of town and basically had to go down every road. But of
>>     course, that was before the internet disrupted cable television,
>>     and a monopoly franchise meant something.
>>     But I don't understand how you could compel a carrier today, even
>>     an incumbent, to deploy or upgrade their infrastructure
>>     universally. And would you compel both the cable company and the
>>     incumbent telephone carrier both to deploy fiber to every home
>>     premise? What about CLEC overbuilders like Sonic? We build where
>>     we can, but without pre-existing conduit in place, and with
>>     overloaded poles and varying city limitations on underground
>>     construction, we end up with gaps in our coverage.
>>     -Dane
>>     On Tue, Nov 17, 2020 at 2:39 PM Ernesto Falcon <ernesto at eff.org
>>     <mailto:ernesto at eff.org>> wrote:
>>         This is just one of many pieces. I agree this approach in
>>         isolation alone would not be enough but I would emphasize
>>         that this is what common carriage already requires in law
>>         today under Title II. The FCC has a job to enforce.
>>         This is also limited to what the FCC can do with its
>>         authority without a new law. For example, the FCC can't free
>>         up the local govs from the state restraints under Title II,
>>         which is why the Clyburn bill has those provisions unless
>>         those states change their laws. It can free up federally
>>         funded fiber under E-Rate early next year that will help with
>>         public infrastructure, but that's a small lift politically
>>         for the Biden FCC. And most of the money the FCC has
>>         available is obligated now under RDOF for years on out, so
>>         absent a new infusion of funds, there isn't more money coming
>>         from the FCC without Congress.
>>         This is also specifically focused on densely populated cities
>>         and not a rural solution and focused on what can be done by
>>         regulation without money. Also nothing will be done that
>>         won't face litigation challenge by the ISPs, but if you start
>>         on year 1 you can get to resolution by year 2 to begin to
>>         enforce.
>>         On 11/17/20 2:18 PM, Christopher Mitchell wrote:
>>>         I respect the people who may support this, but not only
>>>         would I not sign this letter, I actively oppose it. I do not
>>>         think it is in anyone's interest to force AT&T to invest
>>>         more in low-income communities. AT&T will never do a good
>>>         job of meeting those needs and I think work focused on how
>>>         to pass laws that would force AT&T et al to do that would be
>>>         wasted. We need to focus on better approaches to ensuring
>>>         everyone can access the Internet, as I outlined here:
>>>         https://nonprofitquarterly.org/a-signal-failure-education-broadband-and-our-childrens-future/
>>>         <https://nonprofitquarterly.org/a-signal-failure-education-broadband-and-our-childrens-future/>
>>>         If you use the force of law to compel AT&T to invest in
>>>         these areas, you will make it less likely and more difficult
>>>         for ISPs and business models that will do a much better job
>>>         of meeting those needs in the short and long term. I do not
>>>         think there is a short term argument in favor of forcing
>>>         AT&T to invest in certain areas as it will be years of court
>>>         battles that would have to be won prior to AT&T changing any
>>>         investment plans.
>>>         In disagreement, but solidarity,
>>>         Christopher Mitchell
>>>         Director, Community Broadband Networks
>>>         Institute for Local Self-Reliance
>>>         MuniNetworks.org <http://www.muninetworks.org/>
>>>         @communitynets
>>>         612-545-5185
>>>         On Tue, Nov 17, 2020 at 2:25 PM Ernesto Falcon
>>>         <ernesto at eff.org <mailto:ernesto at eff.org>> wrote:
>>>             Hey folks,
>>>             The time to weigh in with the incoming Biden
>>>             Administration on goals for the first year is
>>>             _/*now*/_./**/Decisions about staffing federal agencies
>>>             and setting their priorities are happening as we speak
>>>             so that come January they can hit the ground running.
>>>             Not a lot has been submitted to the transition team
>>>             about what the FCC should do so I worked with some folks
>>>             to come up with this letter that I present to you for
>>>             your consideration.
>>>             The letter asks that the new Biden Administration
>>>             appoint FCC Chair/Commissioners that will lead the
>>>             agency to abolish digital redlining that is happening in
>>>             our cities in year 1 and mandate the incumbents like
>>>             AT&T to deploy fiber to the low-income people they have
>>>             left behind with the goal of full deployment by the end
>>>             of the first term. This would be done after
>>>             reclassification of broadband as a Title II service by
>>>             relying on the anti-discrimination authority the FCC has
>>>             under Title II to address socio-economic discrimination
>>>             in areas that are economic to fully serve.
>>>             It is just a fact that the large ISPs have refused to do
>>>             so because they do not want to serve low income people
>>>             for lower profits. Full deployment of fiber in densely
>>>             populated cities is 100% profitable for the major ISPs
>>>             like AT&T, but because we don't have an affirmative
>>>             anti-redlining regulation on fiber, they are collecting
>>>             profits that stem from discrimination with a
>>>             disproportionate impact on people of color. This will
>>>             carry serious ramifications going forward as those older
>>>             slower networks will become more expensive to maintain,
>>>             more expensive to subsidize access, and receive less and
>>>             less investment by the incumbents who are purposefully
>>>             letting them fall apart.
>>>             The new FCC can and should stop that from continuing
>>>             forward after it reclassifies broadband as a Title II
>>>             service.
>>>             **If you wish to sign on to the attached letter*, please
>>>             click the link below. Deadline to sign on is November
>>>             COB 23rd (Monday).*
>>>             https://docs.google.com/forms/d/e/1FAIpQLSd3zD7OT-oCpk8m0azJlbkIYxouSJTZZPFZIa32KfwvWhLEqA/viewform?usp=sf_link
>>>             <https://docs.google.com/forms/d/e/1FAIpQLSd3zD7OT-oCpk8m0azJlbkIYxouSJTZZPFZIa32KfwvWhLEqA/viewform?usp=sf_link>
>>>             -- 
>>>             Ernesto Omar Falcon
>>>             Senior Legislative Counsel
>>>             Electronic Frontier Foundation
>>>             Office: 415 436 9333 ext. 182
>>>             Cell: 202 716 0770
>>>             _______________________________________________
>>>             CalFiber mailing list
>>>             CalFiber at lists.eff.org <mailto:CalFiber at lists.eff.org>
>>>             https://lists.eff.org/mailman/listinfo/calfiber
>>>             <https://lists.eff.org/mailman/listinfo/calfiber>
>>         -- 
>>         Ernesto Omar Falcon
>>         Senior Legislative Counsel
>>         Electronic Frontier Foundation
>>         Office: 415 436 9333 ext. 182
>>         Cell: 202 716 0770
>>         Help EFF Defend Freedom in the Digital World
>>         https://www.eff.org/donate  <https://www.eff.org/donate>
>>         _______________________________________________
>>         CalFiber mailing list
>>         CalFiber at lists.eff.org <mailto:CalFiber at lists.eff.org>
>>         https://lists.eff.org/mailman/listinfo/calfiber
>>         <https://lists.eff.org/mailman/listinfo/calfiber>
>>     -- 
>>     Dane Jasper
>>     CEO
>>     707-237-6205
>>     dane.jasper at sonic.com <mailto:dane.jasper at sonic.com>
>     -- 
>     Ernesto Omar Falcon
>     Senior Legislative Counsel
>     Electronic Frontier Foundation
>     Office: 415 436 9333 ext. 182
>     Cell: 202 716 0770
> -- 
> Dane Jasper
> 707-237-6205
> dane.jasper at sonic.com <mailto:dane.jasper at sonic.com>

Ernesto Omar Falcon
Senior Legislative Counsel
Electronic Frontier Foundation
Office: 415 436 9333 ext. 182
Cell: 202 716 0770

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