Industry Warns CPUC to Stay Away From Broadband Affordability

A fight's brewing in California over whether a state commission can study broadband affordability. Consumer advocates urged the California Public Utilities Commission last week to keep broadband part of a proposed framework for reviewing affordability of essential services. AT&T, cable and small telecom carriers disagreed, saying federal law stops the state commission from scrutinizing broadband.

The CPUC can’t study broadband in a utility rate affordability rulemaking because the communications service isn’t a public utility, AT&T said in reply comments in docket R.18-07-006. "Broadband is an information service over which the Commission is precluded from regulating,” AT&T said. Consumer groups are wrong to justify collection of broadband information by saying it's for LifeLine and California Advanced Service Fund programs, because a Nov. 19 memo for the proceeding said public policy programs are outside its scope, the carrier said.

The staff proposal wouldn’t immediately regulate broadband, but “its proposed treatment of broadband services as ‘utility’ services -- and its incorporation of such services within the Commission’s affordability framework -- is not only unlawful, it also creates a high risk that the proposal could lead the Commission into conflict with these federal-law limitations in specific future applications of the framework,” wrote the California Cable & Telecommunications Association. Broadband's an interstate information service that the state can't regulate, and the proceeding scope is limited to utility services, CCTA said.

The FCC’s 2018 Restoring Internet Freedom (RIF) order said Section 706 isn't an affirmative source of authority for the FCC or state commissions, and that order "binds the CPUC even while under review," CCTA said. “Any requirement by a state commission that broadband providers submit or report data different from the disclosures required by the FCC would be impermissible under the FCC’s current framework,” it said.

Federal law doesn't stop the CPUC from tracking broadband affordability, countered the CPUC Public Advocates Office (PAO). “The Commission should direct CCTA to refrain from obstructing this proceeding with its false and misleading assertions that the Commission has no authority to examine the impact of its activities as broadband providers in California,” PAO said. “California’s authority to obtain information in aid of the State’s administrative and regulatory objectives is not an assertion of jurisdiction.”

The RIF order "allows states to continue to exercise statutory authority in ways that do not interfere with the FCC's efforts to overturn network neutrality,” replied The Utility Reform Network. Public utility regulation "results in outcomes that constrain the operations of a service provider," but here the CPUC wouldn't be doing that, TURN said. Classifying voice and broadband as essential, studying their affordability and impact on other utility rates “in no way restricts any broadband entity from the activities in which they may engage, or the products that they offer.” The CPUC may request data if it's in a way that's consistent with the 2018 order's transparency rule, TURN said.

Reject industry’s effort to avoid CPUC oversight, urged the Center for Accessible Technology. If the CPUC doesn’t study voice and broadband affordability, it “will forgo development of an important tool to evaluate whether its various communications programs, including not only LifeLine but also other assistance programs such as CASF [California Advanced Services Fund] and the High Cost Funds, are effectively meeting their intended goals,” said the center: State LifeLine today lacks “a clear framework of what it means to provide service at affordable rates.”

The staff proposal correctly says broadband capable of streaming video is essential, PAO said. “Video streaming has the same magnitude of importance for broadband service as local calling does for voice service; without it, the service is neutered.” AT&T argues entertainment like Netflix shouldn't be considered essential, but PAO said video is important for education, telehealth, safety and participating in society.

The California commission's eyeing broadband affordability as state deregulation of VoIP and other IP-enabled service nears expiration at year-end. The California legislature didn’t pass an industry-backed bill this session to extend the deregulation (see 1909110016).

The deregulatory bill’s failure “was due in large part to concern about the need for state telecommunications jurisdiction to ensure reliability and safety, particularly with increased wildfire danger,” emailed Santa Clara University law professor Catherine Sandoval, a former CPUC member. Look for CPUC action in that area soon, though the deregulatory bill probably will come back when state lawmakers return to Sacramento, said Regina Costa, TURN telecom research director. “AT&T isn’t going to go quietly in the night.”