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Verizon’s Idea of a “Modest Rate Increase” in New Jersey: 440%; $15 Billion Collected for Phantom Fiber

Verizon-logoWhile the New Jersey Board of Public Utilities was able to quickly settle its differences with Verizon by granting the phone company’s wish to walk away from its commitment to offer 45Mbps broadband across the state, New Jersey ratepayers are out $15 billion in excess phone charges levied since 1993 for promised upgrades many will never get.

The Opportunity New Jersey plan the state government signed with Verizon was supposed to expand advanced broadband across the state in return for “a modest amount of pricing flexibility” in the fees Verizon charged customers in New Jersey. But Verizon is not a modest company and a new report shows the phone company used the agreement to boost rates as much as 440% — primarily through ancillary surcharges including inside wire maintenance, wire investment, an investment recovery fee, a local number portability surcharge, merged local calling area charge, and various other charges for phone features including Caller ID, Call Waiting, etc.

Tom Allibone, the president of LTC Consulting joined forces with New Networks’ Bruce Kushnick to analyze more than 30 years of Verizon New Jersey phone bills and discovered when it comes to tallying up rate increases, Verizon’s addition skills are akin to taking out a bag of M&M’s and only counting the yellow ones.

“This Verizon New Jersey bill from April 2002 [...] has an “FCC Subscriber Line Charge”, which was $6.21 cents per line. Verizon’s quote doesn’t include this charge in their analysis of no increases between 1985 to 2008,” Kushnick writes. “The FCC Line Charge (it has many names), is on every local phone bill and the charge started in 1985. You can’t get service without paying this charge and the money does NOT go to fund the FCC but is direct revenue to Verizon New Jersey.”

verizonnjrateincreaseAfter adding up various other surcharges, Kushnick’s bill increased a lot.

“Add up the ‘Total Monthly Charges’ for 2 phone lines— It’s ugly,” Kushnick said. “While the cost of the ‘monthly charges’ was $25.62, there’s an extra $17.70 cents — 70%. I thought that Verizon said there were no ‘increases.’”

“Anyone who has ever bought a bundled package of services from Verizon (or the other phone or cable companies) knows that they all play this shell game; the price of service you have to pay is always 10-40% more than the advertised price. That’s because the companies leave out the cost of these ancillary charges and taxes in their sale pitch,” he added.

Verizon raised local residential service rates 79% in 2008, according to Kushnick. Business customers paid 70 percent more. Caller ID rates increased 38% — remarkable for a service that has a profit margin of 5,695%. But Verizon did even better boosting the charge for a non-published number by 38% — a service that has a 36,900% profit margin as of 1999 — the services are even cheaper to offer now.

Telephone service is one of those products that should have declined in price, especially after phone companies fully depreciated their copper wire networks — long ago paid off. Companies like Verizon have cut the budgets for outdoor wire maintenance and the number of employees tasked with keeping service up and running has been reduced by over 70 percent since 1985, dramatically reducing Verizon’s costs. But Verizon customers paid more for phone service, not less.

The cost of service might not have been as much of an issue had Verizon taken the excess funds and invested them in promised upgrades, but that has not happened for a significant percentage of the state and likely never will. Instead, they just increased company profits. More recently, Verizon has directed much of its investments into its more profitable wireless division.

Even though Verizon achieved total victory with the Christie Administration-dominated BPU, the company is still making threats about any future plans for investment.

“It’s important that regulators and legislators support public policies that encourage broadband growth in New Jersey rather than ones that could jeopardize the state’s highly competitive communications industry, or risk future investments by providers like Verizon,” wrote Sam Delgado, vice president of external affairs.

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The New Guilded Age is Pay-Per-View; Comcast-TWC Merger Like a Throwback to An Earlier Era

gildedA merger of Time Warner Cable and Comcast is just one more step towards undermining our democracy, worries former Secretary of Labor Robert Reich.

In a blog entry republished by Salon, Reich sees increasing evidence that the trust-busting days at the turn of the 20th century are long over, and Americans will likely have to relearn the lessons of allowing capitalism to run amuck.

It was the Republican Party of the 1890s that had the loudest voice in Washington protesting the concentration of business power into vast monopolies that had grown so large, they not only hurt consumers but threatened to undermine democracy itself.

Republican Senator John Sherman of Ohio was at the forefront of acting against centralized industrial power, which he likened to the abusive policies of the British crown that sparked America’s revolution for independence.

“If we will not endure a king as a political power,” Sherman thundered, “we should not endure a king over the production, transportation, and sale of any of the necessaries of life.”

The merger of Comcast and Time Warner Cable is just the latest example America is in a new gilded age of wealth and power that no longer prevents or busts up concentrations of economic power, observes Reich.

“Internet service providers in America are already too concentrated, which is why Americans pay more for Internet access than the citizens of almost any other advanced nation,” Reich argues.

Reich

Reich

Reich worries about the implications of allowing Comcast to grow larger, considering how much the current company already invests in Washington to get the government policies it wants:

  • Comcast has contributed $1,822,395 so far in the 2013-2014 election cycle, according to data collected by the Center for Responsive Politics — ranking it 18th of all 13,457 corporations and organizations that have donated to campaigns since the cycle began. Of that total, $1,346,410 has gone to individual candidates, including John Boehner, Mitch McConnell, and Harry Reid; $323,000 to Leadership PACs; $278,235 to party organizations; and $261,250 to super PACs;
  • Comcast is also one of the nation’s biggest revolving doors. Of its 107 lobbyists, 86 worked in government before lobbying for Comcast. In-house lobbyists include several former chiefs of staff to Senate and House Democrats and Republicans as well as a former commissioner of the Federal Communications Commission. Nor is Time Warner Cable a slouch when it comes to political donations, lobbyists, and revolving doors. It also ranks near the top.
Atwell-Baker

Atwell-Baker

The Center for Responsive Politics expanded on the revolving door issue between the cable industry and the Federal Communications Commission that will be responsible for approving the Comcast-Time Warner merger.

It found one of the most prominent travelers to be former FCC commissioner-turned Comcast lobbyist Meredith Atwell-Baker. Always a friend of the cable industry, the Republican commissioner hurried out the door two years into her four-year term after getting a lucrative job offer from Comcast in June 2011. Despite claims she stopped participating in votes relating to Comcast after getting her job offer, she was a strong supporter of Comcast’s merger with NBCUniversal and favored the cable industry’s approach towards preserving a barely noticeable feather-light regulatory touch.

Atwell-Baker never contemplated her move might be seen as a conflict of interest, but then again, it represented nothing new for Washington. At the time, the only condition limiting her was a two-year ban on lobbying the FCC. But that does not apply to Congress so Atwell-Baker spent her time as Comcast’s senior vice president of government affairs trying to influence the House and Senate on 21 bills that could affect Comcast’s bottom line.

Just as shameless — Michael Powell, who served as FCC chairman during the first term of the George W. Bush Administration. After leaving the FCC he took the lucrative position of top man at the National Cable & Telecommunications Association, the cable lobby. The Center found several other former FCC employees heading into the private sector, advising Big Telecom companies on how to best influence regulators:

  • Rudy Brioche, was an adviser to former commissioner Adelstein before moving to Comcast as its senior director of external affairs and public policy counsel in 2009. Brioche was so valued by the FCC, in fact, that he was brought back to join the commission’s Advisory Committee for Diversity in the Digital Age in 2011;
  • James Coltharp, who served as a special counsel to commissioner James H. Quello until 1997, is now a Comcast lobbyist;

comcast twcOnce out of the public sector for several years, some lobbyists see their value deteriorate as they get increasingly out of touch with the latest administration in power. So several seek a refresh, temporarily leaving their lobbying job to return to public sector work.

The Center offered David Krone as a potential example. Krone formerly held leadership and lobbying positions with companies like AT&T, TCI Communications and the National Cable & Telecommunications Association. After 2008, he was hired by Senate Majority Leader Harry Reid (D-Nev.) to advise him on telecommunications matters. Today he is Reid’s chief of staff. If and when Reid leaves office, Krone can always join the parade of ex-Hill staffers back to the lucrative world of lobbying.

Will elected officials give a receptive ear to Comcast’s arguments in favor of its merger? Most likely, considering every member of the Senate Judiciary Committee (except deal critic Sen. Al Franken), has recently received campaign contributions from the cable giant, according to OpenSecrets:

gilded-age.gjf_Comcast PAC donations to Senate Judiciary Committee Democrats

  • Chuck Schumer, New York: $35,000
  • Patrick Leahy, Vermont, Chairman: $32,500
  • Sheldon Whitehouse, Rhode Island: $26,500
  • Chris Coons, Delaware: $25,000
  • Dick Durbin, Illinois: $23,000
  • Amy Klobuchar, Minnesota: $22,500
  • Dianne Feinstein, California: $18,500
  • Richard Blumenthal, Connecticut: $11,500
  • Mazie Hirono, Hawaii: $5,000
  • Al Franken, Minnesota: $0

Comcast PAC donations to Republicans

  • Orrin Hatch, Utah: $30,000
  • Chuck Grassley, Iowa, Ranking Member: $28,500
  • John Cornyn, Texas: $21,000
  • Lindsey Graham, South Carolina: $13,500
  • Jeff Sessions, Alabama: $10,000
  • Mike Lee, Utah: $8,500
  • Ted Cruz, Texas: $2,500
  • Jeff Flake, Arizona: $1,000

Reich thinks its time to return to the trust-busting days of President Teddy Roosevelt, who found the transportation infrastructure of the 20th century and the fuel used to power it increasingly controlled by a handful of giant players that abused monopoly power to set unjustifiable prices and suppress competition. Getting Congress, increasingly flush with now-unlimited corporate money, to agree to its own refresh a century later may prove a tougher sell.

 

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Surprise: Some Alabama Customers Unhappy About AT&T’s Experiment Ending Landline Service

att-logo-221x300AT&T customers in Carbon Hill, Ala. received an unwelcome surprise in their mailbox recently when AT&T informed them they will be part of an experiment ending traditional landline service in favor of a Voice over IP or wireless alternative.

Affected customers are involuntary participants in what AT&T calls an “exciting opportunity for our customers and for our company,” but many residents want no part of it.

The Wall Street Journal reports Carbon Hill city clerk Janice Pendley says some people in the former mining town are not pleased.

“Some of them like their landline, and they like it just the way it is,” she says.

AT&T’s experiment will force new and existing customers to switch to its more-expensive U-verse broadband platform, use a mobile phone, or a home landline replacement that works over AT&T’s cellular network. The FCC has granted AT&T permission to impose its experimental plan to end traditional landline service in two communities where regulatory protections for landline customers are weak to non-existent — Alabama’s Carbon Hill and Delray Beach, Fla.

Carbon Hill is a small town of around 880 households in extreme western Walker County. It is the kind of rural town AT&T would likely never consider for a U-verse upgrade. AT&T embarked on a second major push to extend U-verse into more communities last year, but also indicated it would strongly advocate for a wireless replacement for its landline network in the rest of its service areas. Because Carbon Hill is an experiment, AT&T will offer U-verse to at least part of the community regardless of the usual financial Return on Investment requirements AT&T usually imposes on its U-verse expansion efforts.

carbon hillAT&T is pushing forward despite the fact it  has no idea how it will offer service to at least 4% of isolated Carbon Hill residents not scheduled to be provided U-verse and not within an AT&T wireless coverage area. There are also no guarantees customers will be able to correctly reach 911, although AT&T says the technology “supports 911 functionality.” Serious questions among consumer advocates remain about whether the replacement technology will support burglar alarms, pacemakers and even systems used by air-traffic controllers.

The difficulties service Carbon Hill relate to its rural makeup and income profile. In Delray Beach, it is all about customer demographics. Half of the city is home to residents over 65 years old — the group most likely to prefer their existing landline service. Many are likely to be unhappy about a transition to new technology that will not work in the event of power interruptions, will require the installation of new equipment, or will be tied to a wireless platform that some say reduces the intelligibility of telephone conversations and often introduces audio artifacts like echo, background noise, and dropouts.

In both cities, customers only offered wireless-based service will no longer have access to DSL or wired broadband service of any kind. The wireless alternative from AT&T comes at a high cost and a low usage allowance.

The benefits to AT&T are unquestionable, however. The company will win almost universal deregulation as a Voice over IP or wireless telephone provider. Legacy regulations on customer service requirements, pricing, and obligations to provide affordable phone service to any customer that requests it are swept away by the new technologies. Competitors are also worried AT&T will be able to walk away from regulations governing open and fair access to AT&T’s network.

ip4carbon hillThe Wall Street Journal reports:

The all-Internet protocol “transition holds many promises for consumers, but losing access to affordable voice and broadband services cannot be part of that bargain,” wrote Angie Kronenberg, general counsel of Comptel, in a letter to the FCC last month on behalf of the small-carrier trade group, several companies and public-interest groups.

AARP said it believes AT&T’s plan has “numerous problems.” The technology might not be reliable enough or fail when calling 911 in an emergency, the advocacy group for seniors told regulators in its comment letter. The FCC is reviewing hundreds of comments received in response to AT&T’s request.

EarthLink piggybacks on the “incumbents as little as economically possible” and has laid nearly 30,000 miles of fiber-optic cables throughout the U.S. to help it reach more than a million customers, says Rolla Huff, a former EarthLink chief executive. Still, the company needs access to the connections built by AT&T and Verizon into buildings.

Telecom carriers such as Windstream in Little Rock, Ark., and sellers of broadband data services like EarthLink and XO Communications LLC, of Herndon, Va., have had the right to buy last-mile access at regulated prices since the last major overhaul of federal telecom laws in 1996.

tw telecomIf AT&T ends its traditional network, those competing service providers will have to negotiate with AT&T for access at whatever price AT&T elects to charge.

A preview of what is likely to happen has already been experienced by TW Telecom, an independent firm selling phone and Internet services to businesses over more than 30,000 miles of fiber lines. But that fiber network means nothing if a customer’s last mile connection is handled by a local phone company no longer subject to regulated pricing and access rules.

In Tampa, where Verizon has deployed FiOS as an unregulated replacement for its older, regulated copper-based network, TW Telecom learned first hand what this could ultimately mean:

Rochester Telephone Corporation was born in 1921 after a merger between the Rochester Telephonic Exchange, a branch of the Bell Company of Buffalo and locally-owned independent Rochester Telephone Company, which was not allowed to use Bell's long distance network.

Rochester Telephone Corporation was born in 1921 after a merger between the Rochester Telephonic Exchange, a branch of the Bell Company of Buffalo and locally owned independent Rochester Telephone Company, which was not allowed to use Bell’s long distance network.

TW Telecom approached Verizon in 2012 to seek last-mile access to a Tampa, Fla., building being converted into a bank from a restaurant. Verizon had installed only FiOS at the building.

Verizon said no, telling TW Telecom to build its own connection or pay Verizon thousands of dollars to do the job. TW Telecom declined to pay and lost the customer’s business.

“When it happens, it’s devastating,” says Kristie Ince, who oversees regulatory policy at TW Telecom. Similar snarls have cost the company at least six customers since then. Other carriers say they have had similar clashes.

In Illinois, Sprint’s business phone network has run into a barricade manned by AT&T. Sprint needs AT&T to interconnect calls placed on Sprint’s network intended for AT&T’s customers. The two companies cannot agree on an asking price under the deregulation scheme so Sprint converts its Voice over IP calls to older technology still subject to regulation just so calls will successfully reach AT&T’s customers. AT&T promptly converts those calls back to Voice over IP technology as it completes them.

AT&T said it has “no duty” to connect its Internet protocol traffic with Sprint’s.

If the FCC keeps IP-based traffic deregulated, if and when the old landline network is decommissioned, AT&T will have the last word on access, potentially putting competitors out of business.

Our great-great grandparents experienced similar problems in the early days of telephone service, when high rates from the local Bell telephone subsidiary provoked local competition. But Bell companies routinely refused to handle calls placed on competitors’ networks, forcing customers to maintain a telephone line with both companies to reach every subscriber. Additionally, only Bell-owned providers had access to the long distance network – a competitive disadvantage to competing startups.

Regulatory changes, a handful of mergers and the eventual establishment of the well-regulated Bell System eventually solved problems which threaten to return if AT&T has its way.

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AT&T Deregulation Wallops Californians In Their Wallets; Rates Up 222%, Despite Competition Claims

special reportStop the Cap! reader Steve L. has heard enough of AT&T’s promises that deregulation would bring more competition and better deals to Californians.

The Carlsbad resident is staring at the fruits of AT&T’s labor — winning deregulation of phone rates in 2006: a  basic phone bill that has increased from $5.70 a month before deregulation to $21.25 effective Jan. 2, 2014. That represents a 272 percent increase for basic measured (pay-per-minute) local telephone service. As if that was not enough, AT&T is also raising the per-minute rate for semi-local calls for the second time in two years. Earlier this year, AT&T slashed customers’ calling allowances by 25 percent, reducing the 225 minutes a month of toll-free calling down to 168 minutes in January.

Customers living in large, spread out cities in California are accustomed to Zone Usage Measurement (ZUM) charges for calls placed to numbers more than 12 miles from the local telephone exchange. But they may get bill shock after noticing how much the per-minute rates have increased:

  • ZUM 1/2 (12-15 miles): Calls have doubled in price over the last 36 months. Prior to 2013, calls cost three cents per minute. AT&T raised prices to four cents in January and will raise them again to six cents per minute on Jan. 1;
  • ZUM 3 (15-16 miles): Calling prices have increased from five cents a minute in 2012 to six cents a minute in 2013 and will be seven cents per minute in 2014.

attcarlsbad“After surcharges, fees, and taxes, my bill will be nearly $30 per month for measured rate service, representing a near doubling of cost in just a 22-month period,” Steve writes. “I have no other choice than AT&T for a true powered landline, but I am rejecting this latest increase and plan to test and move to a VoIP system.”

The constant parade of rate increases from the state’s largest local telephone company began shortly after the California Public Utilities Commission (CPUC) unanimously approved sweeping deregulation of telephone rates in August 2006. Then Republican Commissioner Rachelle Chong was the driving force behind the effort, reports the San Francisco Chronicle.

Chong embraced AT&T’s attitude about telecommunications deregulation, promising consumers would not face abusive rate hikes or bad service. Under the old system, AT&T telephone rates were capped in California. AT&T had to approach the CPUC and justify any proposed increases. Without solid evidence, the company’s rate increase requests were rejected. Under deregulation, AT&T was permitted to set rates at-will.

“By the end of the 2010, these rate caps will no longer be necessary,” Chong promised as the new rules were being phased in. “The market will be so competitive it will discipline prices.”

Not quite.

att_logoAT&T’s rates have shot up as much as 222 percent for the average Californian’s measured rate phone service. Some customers, including our reader, found rates nearly three times higher than they were before deregulation. In the last few years, AT&T has increased prices on landline service and calling features even more dramatically across the state:

  • AT&T Flat-Rate landline service jumped 115 percent since 2006, from $10.69 to $23 a month;
  • Call Waiting, a popular phone feature, is up nearly 180 percent;
  • Anonymous Call Rejection fees have almost quadrupled;
  • Lifeline Service for California’s most disadvantaged is up 28 percent.

“My belief is that AT&T is essentially harvesting,” Dane Jasper, chief executive of Sonic.net, a competing broadband Internet service in Santa Rosa that tosses in domestic phone service for free, told the newspaper. “They jack up the rate by a pretty egregious amount … because if people leave, well, where are they going? AT&T mobile phone service in at least half the cases. So they’re happy to have them leave or happy to have them stay.”

rate hikesAT&T defends the increases by suggesting rates were artificially restrained by rate regulators under the old system, and the new higher prices reflect economic reality and the deregulated marketplace. But AT&T’s rate increases have blown past other service providers in the state. Verizon’s flat rate service only increased 18 percent since deregulation. Independent providers SureWest and Frontier Communications have only raised prices by about six percent.

With these kinds of rate increases, customers like Steve are making hard choices about whether to keep or ditch their landline service. Ironically, AT&T’s argument to decommission traditional landline service is based on the premise customers are abandoning landline service. AT&T advocates moving customers to its deregulated U-verse platform in urban areas and switch rural customers to wireless-only service.

Chong paid a personal price for her erroneous predictions of consumer savings. In December 2009, the Democratically controlled State Senate refused to hold hearings on Chong’s reappointment to the CPUC, ending her term. AT&T and Verizon strongly backed Chong and lobbied hard for her confirmation. AT&T even turned out its notorious “dollar-a-holler” sock puppet brigade of non-profit groups that showered the legislature with letters supporting her reappointment, without bothering to disclose AT&T had made substantial direct or indirect contributions to the groups in the past.

Murray Bass, head of a small nonprofit in Northern California, initially wrote lawmakers saying Chong was a strong voice for low-income seniors. But in an interview, he admitted he’d endorsed her at the suggestion of executives at AT&T, which had given his group money.

“There’s an essential conflict of interest when a regulated — or supposedly regulated — entity is intervening on behalf of a regulator that’s friendly to them,” said Mark Toney, executive director of the Utility Reform Network, a group that opposed Chong.

SUPPORTERS OF COMMISSIONER CHONG WITH TIES TO AT&T

Organization  Funding Received  Letter Signatory (-ies)
Asian Pacific Islander American Public Affairs (APAPA) The AT&T Foundation gave APAPA $25,000 in 2007. On the APAPA website, AT&T is listed as a top-tier event sponsor with a $50,000 donation in 2009. Joel Wong, Bay Area Chapter PresidentNorm De Young, VP Outreach and Chair of APAPA’s GovernmentRelations Committee (spoke on behalf of Filipino Progress)
CA Small Business Association (CBSA) AT&T is a corporate sponsor of the Small Business Roundtable (CBRT), the advocacy wing of CBSA, which has received $37,500 from AT&T since 2006.    The AT&T Foundation  underwrites  CBRT’s education fund, tech training and website.  Both CBSA and CBRT are active in CPUC proceedings, and CBSA endorses candidates and lobbies public officials.The California Small Business Education Foundation received a 3-year $1.125 million grant from the AT&T foundation.  Betty Jo Ticcoli, the letter’s signatory, is its Chair and CSBA is a member.CSBA is a member of the California Utilities Diversity Council (CUDC) along with AT&T and Verizon. Betty Jo Toccoli
California Hispanic Chambers of Commerce (CHCC) $30,000 from AT&T corporate since 2006, millions more from the Foundation.  Black, Hispanic & Asian Chambers are sharing a 1.25-year $287,000 CETF grant.   AT&T is a corporate member statewide and of several local Hispanic Chambers.  AT&T sponsors CHCC’s annual convention and underwrites local events such as FestivALL, sponsored by the Silicon Valley Hispanic Chamber.Member of  CUDC. Kenneth A. Macias, Chairman of the BoardJoel Ayala, President & CEO
City of Firebaugh $633,000 CETF grant. Jose Antonio Ramirez, City Manager
Cristo Rey High School Sacramento Received a $25,000 grant from AT&T Foundation in 2009. Joan Evans, VP for Advancement
Fresno-Madera Area Agency on Aging (FMAAA) $50,000 SBC Foundation Grant in 2002; $20,000 in 2003; AT&T has sponsored FMAAA’s Scamnot.org website since 2005. Jo Johnson, Executive Director
Latino Community Foundation $25,000 CETF grant. Aida Alvarez, Chairperson
Latino Institute for Corporate Inclusion (LICI) AT&T is a corporate partner of LICI; LICI’s IRS form 990 shows  income of $19,742 in 2008 and it has received $17,500 from AT&T corporate according to AT&T’s 77-M filing with the state, more from the AT&T foundation.Member of CUDC. Ruben Jauregui, President & CEO
Latino Journal $17,500 from AT&T since 2006; AT&T, Verizon and the CPUC are strategic partners in the Journal-sponsored California Education Summit, which AT&T underwrites.Member of CUDC. Jose L. Perez
Mexican American Opportunity Foundation (MAOF) $25,000 from AT&T Foundation. Magda Menendez, Administrator
Other Connections Between AT&T and Chong Supporters
OCA – Organization of Chinese Americans Sacramento AT&T is a corporate partner of national org and both AT&T and Verizon sponsor Asia Week and other heritage events Joyce Eng, President
Tools of Learning for Children Big AT&T logo on website. Told the Los Angeles Times, “he’d endorsed [Chong] at the suggestion of executives at AT&T, which has given his group money.” Murray T Bass, MA, CFP
United Way of Butte & Glenn Counties President Preston Dickinson is former Director of External Affairs for AT&T. W. Jay Coughlin, Executive Director

 Notes

  • 1.  CUDC - The California Utilities Diversity Council is a collaboration between the CPUC , the utility companies and other industry participants  to promote diversity in the utility industry.  AT&T is a gold sponsor of CUDC’s annual convention.
  •  2.  CETF - CETF is a private non-profit corporation created by the California Public Utilities Commission (CPUC) and funded entirely by AT&T and Verizon.  Commissioner Chong is Chair of the CETF Board of Expert Advisors and its Accessibility Committee.  CPUC President Michael Peevey is Chairman of the CETF Board of Directors. The CETF board is appointed by the CPUC, AT&T and Verizon.

Sources:

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History Repeats: Revisiting Dr. John Malone’s Big Cable “B-Movie” Treatment of Jefferson City, Mo.

tciAs Dr. John Malone positions his pieces on the cable industry’s chess board to win back the title of King of Big Cable, it is important to consider history.

Malone’s growing interest in a combined Charter-Time Warner Cable, under his effective control, is the first step towards re-envisioning Tele-Communications, Inc. (TCI) — America’s largest cable operator in the 1980s and early 1990s. Although most of the original TCI Cable systems are now owned by Comcast, Malone’s notorious way of doing business may soon affect millions of Charter and Time Warner Cable subscribers in the not-too-distant future.

http://www.phillipdampier.com/video/Senate Hearings Alan Garner Jeff City MO 3-90.flv

How bad was life with TCI as your local cable company? Listen to Alan Garner, then-City Attorney for Jefferson City, Mo., who testified before Congress in March, 1990 about the uniquely abusive, allegedly criminal behavior of out of control TCI executives. (5:04)

http://www.phillipdampier.com/video/Senate Hearings Danforth Alan Garner Jeff City MO 3-90.flv

Sen. Daniel Inouye (D-Hawaii) was so stunned by the events in Jefferson City, he first asked if TCI’s threats were documented and on learning they were the basis of $35 million in court-ordered damages, the chairman of the Senate Commerce Committee remarked, “you got thugs around there.” Under detailed questioning by Sen. John Danforth (R-Mo.) Garner talks about the “B-Movie” threats from TCI executives who warned city officials “we know where you live,” constant rate hikes, take-what-we-give-you service, and the fact TCI was willing to rip down cable lines and leave the city without cable service if they were denied a franchise renewal. (14:12)

http://www.phillipdampier.com/video/Senate Hearings Burns Alan Garner Jeff City MO 3-90.flv

A befuddled Sen. Conrad Burns (R-Mont.) asked Garner why the city would still want to stay involved in the cable franchise process after the city’s horror story. Garner explained cable operators use public property to wire service to customers. Without local oversight, Garner believed TCI would still be scattering cable lines across neighbors’ backyards, across sidewalks, and draped over fences. TCI had a unique way of managing local service complaints, according to Garner. It threw service orders into a random cardboard box and let cable repair crews fish them out one by one. The ones furthest back in the box were the oldest, and the least likely to ever be chosen. TCI only listened to city officials when they had some oversight and enforcement powers. (3:13)

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New FCC Chairman Denies He’s an Industry Shill: “My Client is the American People”

Phillip Dampier November 14, 2013 Competition, Consumer News, History, Public Policy & Gov't, Video 2 Comments
Tom Wheeler circa 1983, when he represented the cable industry.

Tom Wheeler circa 1983, when he represented the cable industry. (Image: The Cable Center)

Skepticism persists over whether new FCC chairman Tom Wheeler, a former cable and telco lobbyist and venture capitalist, will have the interests of an industry he was a part of for decades ahead of the people he is supposed to represent.

The doubts are so significant, The Wall Street Journal’s ‘All Things D’ devoted an entire piece on the subject, interviewing Wheeler about his plans for the federal agency.

“My client today is the American people, and I am going to be the most effective advocate they could hope for,” Wheeler told AllThingsD in a phone interview on Wednesday. “I was (involved in) the early days of cable television when everybody was trying to squash it; I was a was champion for a diversity of voices and the competition that represented. I’m very proud of that period, but it was 30 years ago that I was in in cable, and 10 years ago that I was in wireless.”

Both periods were extremely important for both industries. When Wheeler was president of the National Cable TV Association (now the NCTA), his leadership helped enact the 1984 nationwide deregulation of the cable television industry. Wheeler promised the single national “hands-off” policy for cable television would put control “back in the hands of customers” instead of the local, state, and federal government. The cable lobby pushed hard for extra provisions in the law that would prohibit local or state governments or franchising authorities from reimposing controls the federal government eliminated.

The 1984 Cable Act contained three major provisions to strip away regulatory/rate oversight:

  1. “Basic Cable” rate regulation was removed in any community where a cable company faced “effective competition” from at least three unduplicated over the air television stations. If your community received two fuzzy network affiliates and one local religious station, that was considered effective competition.
  2. Local franchise authorities and cable TV commissions, often citizen-run, had most of their oversight and enforcement powers stripped away, including the most important power to deny a franchise renewal to a bad-acting local cable company, except in the most extreme cases. Cable operators effectively used this provision to launch costly lawsuits burying local communities in litigation expenses when they tried to find a different provider.
  3. Granted local franchise authorities to right to demand cable systems set aside a few channels for Public, Educational, and Government (PEG) use.

The cable industry carefully lobbied for an effective definition of “competition” that made it into the final version of the bill. Estimates from congressional researchers predicted that 97 percent of the country’s cable systems would be deregulated when the law took effect Dec. 29, 1986.

In a 1984 C-SPAN call-in program, Wheeler noted that before deregulation, “the cities were in the driver’s seat” controlling the franchising process. Wheeler claimed cable operators competing for franchise agreements were forced to promise services and technology that ultimately proved too burdensome or expensive to actually deliver. Deregulation, Wheeler promised, would “keep cable rates low because you are not going to be paying for services that [the government says] have to be provided that nobody watches.”

In reality, after the passage of the 1984 Cable Act, cable systems were bought and sold in a frenzy that left control ultimately in the hands of a handful of operators. Soon after, cable rates skyrocketed and cable-industry-owned networks and channels were shoveled on to cable lineups. With every sale and every new channel addition, rates were raised even higher, whether customers wanted the extra programming or not.

Without oversight, cable service itself deteriorated in quality. In some cities, cable operators ignored rights-of-way and often refused to hang or bury cable lines left scattered on lawns. Customer complaints often went unresolved for days or weeks. Cable operators also rolled out new charges for monthly programming magazines and equipment, even as they continued to boost rates for basic cable itself. Prior to deregulation, customers usually paid less than $10 a month for basic cable. After, rates rapidly pushed towards the $20 a month mark. Today’s cable TV prices are much higher.

In the summer of 1984, Wheeler left the NCTA to pursue a new business – The NABU Network, a precursor to cable broadband that turned out to be a commercial failure. The NABU Network coupled a home computer system with a cable-based data service. The only significant North American trial of NABU was in Ottawa, Canada and required significant subsidies from the Canadian government. Wheeler said the NABU system would offer subscribers a mountain of software at a monthly subscription price. Canadians had to buy the NABU PC for around $950 and pay around $10 a month for software access.

The venture fell apart because cable systems in that era lacked two-way capability, making it cumbersome for users to interact with the NABU platform or manage applications. Ottawa Cablevision and Skyline Cablevision introduced NABU in 1983 and discontinued it in 1985.

In 1992, Wheeler went on to become president of CTIA – The Wireless Association, the nation’s biggest cell phone industry trade group. Wheeler beefed up the association’s lobbying forces after joining, turning CTIA into “one of the most influential lobbying forces on Capitol Hill,” according to Connected Planet.

Once there, Wheeler presided over efforts to get government spectrum policies relaxed and keep cancer questions about RF energy leaking from cellphones under wraps:

In a 1994 memo, Wheeler raised objections to a draft of a mobile-phone manual that, among other things, advised consumers how to limit radio-frequency radiation from mobile phones. The book says Wheeler succeeded in getting the industry consumer safety document watered down.

In a September 1994 memo, Wheeler mapped out “a pre-emptive strike” on Rep. Edward Markey (D-Mass.) by highlighting to Markey the involvement of Harvard University. Wheeler, according to the book, even had a backup plan to curry favor with Markey that, if necessary, would “send all cash through Harvard.”

By 2000, Wheeler was being questioned about conflict of interest charges about his lucrative investments in businesses represented under the CTIA’s public policy umbrella, according to RTR Wireless:

But conflict-of-interest issues-real, perceived and otherwise-that flow from Wheeler’s lucrative ties to Aether, OmniSky and now, Metrocall, could have long-term consequences that CTIA and the wireless industry would rather not consider in these halcyon days of soaring stocks, consolidation and deregulation.

The unorthodox arrangement Wheeler has with outside wireless firms begs closer scrutiny by CTIA’s board. Do Wheeler’s money and management ties to firms he advocates set a bad precedent? Could it diminish CTIA’s credibility as an organization?

Wheeler claims to be committed to three principles that will govern how he looks at issues before the FCC:

  1. Is it good for competition? “You can’t have economic growth if you don’t have competition. You can put me down as rabidly pro-competition,” Wheeler said.
  2. Trust between those who run networks and those who use them must be maintained.
  3. Opening up high-speed networks must include guarantees that content will be open and accessible to all. “I am pro-the ability of individuals to access an open network,” he said.

Wheeler asked for a review of all proposals before the FCC and expects that in two months.

Tom Wheeler, then retiring president of the National Cable TV Association (NCTA), appeared on this fascinating 1984 C-SPAN call-in program at the NCTA Convention with future president Tom Mooney. The NCTA promised deregulation would deliver many benefits to cable subscribers. They got higher bills and declining service instead. (June 5, 1984 – 39:00)

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Charter Communications Weighs Time Warner Cable Takeover by End of 2013; Usage Caps Might Follow

The new name of Time Warner Cable?

The next name of Time Warner Cable?

Charter Communications is laying the foundation for a leveraged buyout of Time Warner Cable before the end of the year in a deal that could leave Time Warner Cable’s broadband customers with Charter’s usage caps.

Reuters reported discussions between the two companies grew more serious after last week’s revelation a poor third quarter left TWC with 308,000 fewer subscribers.

Charter is relying on guidance from Goldman Sachs to structure a financing deal likely to leave Charter in considerable debt. Charter Communications emerged from bankruptcy in 2009 and is the country’s tenth largest cable operator, estimated to be worth about $13 billion. Time Warner Cable is the second largest cable operator and is worth more than $34 billion.

The disparity between the two companies has kept Time Warner Cable resistant to a deal with Charter, stating it would not be beneficial to shareholders. Charter executives hope to eventually win shareholder support for a buyout stressing the significant cost savings possible from a combined operation, particularly for cable programming.

The deal would likely end Time Warner Cable as a brand and leave Charter Communications CEO Thomas Rutledge in charge of a much larger cable company. Pricing and packaging decisions are usually made by the buyer, which could bring faster broadband speeds to Time Warner customers, but also usage caps already in place at Charter.

John Malone’s War on Customers

Malone

Malone

Cable billionaire John Malone, former CEO of Tele-Communications, Inc. (TCI) — America’s largest cable operator in the 1980s — believes consolidation is critical to the future of a cable business facing competition from phone companies and cord cutting. Malone’s Liberty Media, which now holds a 25% stake in Charter, is currently buying and consolidating cable operators in Europe. Malone’s post-consolidation vision calls for only two or three cable operators in the United States.

Malone’s quest for consolidation is nothing new.

Under his leadership, TCI eventually became the country’s biggest cable operator, but one often accused of poor service and high prices. More than a decade of complaints from customers eventually attracted the attention of the U.S. Congress, which sought to rein in the industry with the 1992 Cable Act — legislation that lightly regulated rental fees for equipment and the price of the company’s most-basic television tier.

Despite the fact consumer advocates didn’t win stronger consumer protection regulations, TCI was still incensed it faced a new regulatory environment that left its hands tied. One executive at a TCI subsidiary advocated retaliation with broad rate increases for unregulated services to make up any losses from mandated rate cuts.

A 1993 internal TCI memo obtained by the Washington Post instructed TCI system managers and division vice presidents to increase prices charged for customer service calls and add new fees for common installation services the company used to offer for free. TCI’s Barry Marshall recommended charging for as many “transaction” services as possible — like hooking up VCR’s, running cable wire, and programming remote controls for confused customers.

“We have to have discipline,” Marshall wrote. “We cannot be dissuaded from the [new] charges simply because customers object. It will take awhile, but they’ll get used to it. The best news of all is we can blame it on re-regulation and the government now. Let’s take advantage of it!”

Tele-Communications, Inc. (TCI) was the nation's largest cable operator.  Later known as AT&T Cable, the company was eventually sold to Comcast.

Tele-Communications, Inc. (TCI) was the nation’s largest cable operator. Later known as AT&T Cable, the company was eventually sold to Comcast.

The FCC’s interim chairman at the time — James Quello, charged with monitoring the cable industry, was not amused.

“It typifies the attitude of cable companies engaging in creative pricing and rate increases to evade the intent of Congress and the FCC,” Quello said. “There is little doubt that the cable industry has an economic stake in discrediting the congressional act they vehemently and unsuccessfully opposed.”

Marshall defended his internal memo, although admitted it was inartfully written and was not intended for the public. Revelation of a damaging memo like this would normally lead to a quiet resignation by the offending author, but not at John Malone’s TCI, a company with a reputation for being difficult.

Mark Robichaux’s 2005 book, Cable Cowboy: John Malone and the Rise of the Modern Cable Business, was even less charitable.

Robichaux describes Malone as a “complicated hero,” at least for investors for whom he was willing to ignore banking rules and creatively interpret tax law. Robichaux wrote Malone’s idea of customer service was to ‘charge as much as you can, but spend as little as you can get away with.’

TCI’s top priority was to keep up the cable business as an “insular cartel.” The predictable result included accusations of “shoddy service” customers were forced to take or leave. In the handful of markets where TCI faced another cable competitor, TCI ruthlessly slashed prices to levels some would describe as “predatory,” only to rescind them the moment the competitor was gone. TCI’s intolerance for competition usually meant mounting pressure on competitors to sell their system to TCI (sometimes at an astronomical price) or face a certain slow death from unsustainable price cuts.

Among Malone’s most-trusted friends: junk bond financier Michael Milken and Leo Hindery, former CEO of Global Crossing.

Congressman Albert Gore, Jr., later vice-president during the Clinton Administration, was probably Malone’s fiercest critic in Washington. Gore’s office was swamped with complaints from his Tennessee constituents upset over TCI’s constant rate increases and anti-competitive behavior.

The cable industry's biggest competitor in the 1980s-1990s was a TVRO 6-12 foot diameter home satellite system.

The cable industry’s biggest competitor in the 1980s-1990s was a TVRO 6-12 foot diameter home satellite system.

Gore was especially unhappy that TCI’s grip extended even to its biggest competitor — satellite television.

In the 1980s and early 1990s, cable operators made life increasingly difficult for home satellite dish owners, many in rural areas unserved by cable television. But things were worse for home dish owners that walked away from TCI and began watching satellite television instead. To protect against cord-cutting, the cable industry demanded encryption of all basic and premium cable channels delivered via satellite. It was not hard to convince programmers to scramble — most cable networks in the 1980s were part-owned by the cable industry itself.

To make matters worse, unlike cable systems that only leased set-top boxes to customers, home dish owners had to buy combination receiver-descrambler equipment outright, starting at $500. Just a few years later, the industry pressured programmers to switch to a slightly different encryption system — one that required home dish owners replace their expensive set-top box with a different decoder module available only for sale.

Gore was further incensed to learn TCI often insisted home dish owners living within a TCI service area buy their satellite-delivered programming direct from the cable company. Customers hoping to leave cable for good found themselves still being billed by TCI.

Sometimes the rhetoric against TCI and Malone got personal.

”He called me Darth Vader and the leader of the cable Cosa Nostra,” Malone said of Gore. “You can’t win a pissing contest with a skunk, so there’s no point in getting involved in that kind of rhetoric.”

“There’s a joke going around Washington,” John Tinker, a New York-based Morgan Stanley & Company investment banker who specializes in cable television said of Malone back in 1990. “If you have a gun with two bullets, and you have Abu Nidal, Saddam Hussein and John Malone in a room, who would you shoot? The answer is John Malone — twice, to make sure he’s dead.”

TCI itself was a four letter word in the many small communities that endured the cable company’s insufferable service, outdated equipment, and constant rate “adjustments.”

The New York Times reported John Malone’s TCI had a reputation for treating customers with “utter disdain,” and provided examples:

  • In 1973, rate negotiations stalled with local regulators in Vail, Colo., the local TCI system shut off all programming for a weekend and ran nothing but the names and home phone numbers of the mayor and city manager. The harried local government gave in.
  • In 1981, TCI withheld fees and vowed to go completely dark in Jefferson City, Mo., if the city failed to renew its franchise, while a TCI employee — “who turned out to have a psychological problem,” said Malone — threatened harm to the city’s media consultant. Again, a beleaguered local government renewed the franchise — although in a subsequent lawsuit, TCI was fined $10.8 million in actual damages and $25 million in punitive damages.
  • In 1983, the small city of Kearney, Neb., also dissatisfied with poor service and rising rates, tried to give Malone some competition in the form of a rival system built by the regional telephone company. TCI slashed fees and added channels until the enemy was driven from the field.

“That’s the dark side, if you will, of TCI,” said Richard J. MacDonald, a media analyst with New York-based MacDonald Grippo Riely.

By mid-1989, Malone’s frenzied effort to consolidate the cable industry resulted in him presiding over 482 merger/buyout deals, on average one every two weeks. Among the legacy cable companies that no longer existed after TCI’s takeover crew arrived: Heritage Communications, United Artists Communications and Storer Communications.

To cover the debt-laden deals, Malone simply raised cable rates and shopped for easy credit. Bidding with others’ money, the per-subscriber price of cable systems shot up from $998 in 1983 to an astronomical $2,328 in 1989.

The General Accounting Office, the investigative arm of Congress, found deregulating the cable industry cost customers through rate hikes averaging 43 percent. In Denver, TCI raised rates more than 70% between 1986 and 1989.

Malone’s attempt to finance a leveraged, debt-heavy buyout of Time Warner Cable seems to show his business philosophy has not changed much.

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Wireless is Verizon’s Cash Cow: $12.9 Billion in Operating Profits vs. Landlines/FiOS: $87 Million

moneyIf “follow the money” is a maxim in business, then it should come as no surprise Verizon favors the making the bulk of its investments and expansion in its enormously profitable wireless business.

Verizon Wireless earned the company $12.9 billion in operating profits during the first six months of 2013 while landlines and Verizon’s fiber optic network only delivered $87 million. That inconsistency may help explain why Verizon FiOS expansion is stalled while Verizon throws enormous sums into its 4G LTE wireless upgrade project.

The average Verizon Wireless bill is now over $150 a month. FiOS customers pay an average of over $150 a month as well, but Verizon’s costs to reach its smaller customer footprint are higher. Revenues for basic landline service are considerably lower than either wireless or fiber service.

With wireless providing a virtual ATM for Verizon Communications, the New York Times notes it is unsurprising that Verizon wants to buy out its European partner Vodafone, which owns 45% of Verizon Wireless. Once the $130 billion transaction is complete, Verizon will keep wireless profits all to itself as it continues lobbying for permission to decommission rural landlines and encourage those customers to use its vastly more profitable and almost entirely unregulated wireless network instead.

Exactly 100 years after Verizon predecessor AT&T/The Bell System voluntarily agreed to be a regulated monopoly provider of telephone service, Verizon Wireless and AT&T have successfully established unregulated wireless networks that serve most Americans with cell service and wireless data at prices that would be shocking to people 20 years ago.

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Time Warner Cable Introduces New 30GB Usage-Capped Billing Plan in Rochester, N.Y.

twc logoIn addition to an August broadband rate increase for western New York’s Time Warner Cable customers, those in Rochester will also be among the first to experience a new 30GB usage-capped billing option for broadband service.

The subject of usage-based billing is a major sore spot for customers in the Flower City, who joined forces with customers in Greensboro, N.C., and San Antonio and Austin, Tex. to force the cable company to shelve a mandatory usage billing scheme announced in 2009. Stop the Cap! was in the middle of that fight, although this group was founded after Frontier Communications proposed a 5GB usage cap the summer before.

Time Warner Cable CEO Glenn Britt personally promised Sen. Charles Schumer (D-N.Y) that the cable company would yank its planned experiment with usage caps and consumption-based billing after it became clear Rochester and other cities were being singled out where Verizon FiOS would never offer competition, making it seem Time Warner was taking advantage of a lack of broadband competition to charge dramatically higher prices.

In 2009, Time Warner Cable planned to implement mandatory usage pricing starting in Rochester, N.Y., Greensboro, N.C., and San Antonio and Austin, Tex.

In 2009, Time Warner Cable planned mandatory broadband usage pricing starting in Rochester, N.Y., Greensboro, N.C., and San Antonio and Austin, Tex.

But Britt has never stopped believing in usage pricing, and Time Warner has since switched to a more gradual introduction of the pricing scheme, this time offering discounts to customers that agree to limit their Internet usage.

Time Warner’s current usage billing plan offers a meager $5 discount to those who limit consumption to less than 5GB per month. That plan was originally introduced in Texas and Time Warner Cable employees confidentially tell Stop the Cap! it has attracted almost no interest from customers.

Now Time Warner Cable plans to introduce a second usage limited plan, with a yet to be disclosed discount for subscribers who keep Internet usage under 30GB a month.

“Those who use the Internet for e-mail or to surf the web need not pay the same rates as those who download games and the like,” said company spokesperson Joli Plucknette-Farmen.

As far as we can tell, the 30GB capped plan is new for Time Warner Cable and Rochester will be among the first communities to experience it. Unless the company chooses to more aggressively discount both the 5GB and 30GB plans, we expect few customers will take Time Warner Cable up on their offer.

For now, Time Warner says the usage capped plans are optional and that flat rate Internet service will continue. But company executives have not said for how long or what the company might choose to eventually charge for unlimited broadband usage.

Britt has stressed repeatedly he wants customers to get re-educated to accept “a usage component as part of broadband pricing.” But customers may not accept that, particularly considering the cable company already enjoys a 95% gross margin on flat rate broadband service.

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History Lesson: Qwest v. The City of Boulder – Helpful to Municipal Broadband Cause?

Phillip "It worked for Qwest so why not community broadband" Dampier

Phillip “It worked for Qwest so why not community broadband” Dampier

While doing research on another story, I recently uncovered a fascinating legal case that set an important precedent on whether it is right for a community to hold a referendum before authorizing a new telecommunications provider to offer service in a community.

Opponents of community-owned broadband networks routinely claim such services are “undemocratic” because they can exist without the majority support of the community they propose to serve. In 2001, Qwest (now CenturyLink) ran into just such a “majority-rules” provision in Boulder, Colo. that companies like AT&T and Time Warner Cable advocate should be a law everywhere.

A provision in Boulder’s Charter required that voters in a municipal election approve any cable franchise before it was granted by the city. Wishing to avoid the cost of such an election, Qwest sued the City of Boulder and asked for summary judgment to declare the policy unlawful. Chief Judge Lewis Babcock found Qwest’s argument compelling enough to invalidate the city’s mandatory referendum provision.

Qwest argues that the language in [U.S. Federal Law] 47 U.S.C. § 541 regulating franchising authorities is in direct conflict with [Boulder's] § 108′s mandatory election provision. I agree.

First, the Act provides guidance to, and restrictions on, “franchising authorities.” Section 541′s requirements are directed toward franchising authorities. See 47 U.S.C. § 541(a)(1), (3), (4). Under the statute, a “franchise” is “an initial authorization, or renewal thereof,” issued by a franchising authority to construct or operate a cable system. 47 U.S.C. § 522(9). A “`franchising authority’ means any governmental entity empowered by Federal, State, or local law to grant a franchise.” 47 U.S.C. § 522(10) (emphasis added).

Here, Qwest approached City officials to seek franchise approval. The City granted a revocable permit to Qwest, and agreed to “grant a cable television franchise authorizing [Qwest] to provide cable television service within the City for a term of years” once an affirmative vote by the qualified taxpaying voters occurred. There is no evidence that the City negotiated the franchise in any manner, or put any additional restrictions or caveats on the franchise beyond voter approval. City officials follow the will of the voters with no additional scrutiny or decision-making. Thus, the City has abdicated franchising authority to the City’s voting citizens. These voters cannot, by the plain terms of the statute, be a “governmental entity empowered by Federal, State, or local law to grant a franchise.” 47 U.S.C. § 522(10). Therefore, direct conflict between the federal and local laws exist, as it is impossible for the franchise to be granted by a governmental entity as required by the Act, and simultaneously granted by the voters as required in § 108.

Second, § 541 imposes numerous and specific requirements on franchising authorities. The statute forbids exclusive franchises, see § 541(a)(1); unreasonable refusals to award additional competitive franchises, see id. at (a)(1); requirements that have the purpose or effect of prohibiting, limiting, restricting, or conditioning the provision of a telecommunications service by a cable operator, see id. at (b)(3)(B); ordering a cable operator or affiliate thereof to discontinue the provision of a telecommunications service, discontinuing the operation of a cable system by reason of the failure of a cable operator to obtain a franchise or franchise renewal, see id. at (b)(3)(C)(i)-(ii); or requiring a cable operator to provide any telecommunications service or facilities as a condition of the initial grant of a franchise. See Id. at (b)(3)(D).

A franchising authority has affirmative requirements as well. It must assure that access to cable service is not denied to any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides, see id. at (a)(3); and allow the applicant’s cable system a reasonable period of time to become capable of providing cable service to all households in the franchise area, see id. at (a)(4)(A).

However, by allowing voters unfettered and unreviewed discretion to grant or reject a franchise, § 108 is in conflict with virtually every provision in § 541. Because only WOWC has received a franchise, voters could effectively grant WOWC an exclusive franchise simply by refusing to vote affirmatively for a second operator. See id. at (a)(1). Voters could unreasonably refuse to award an additional competitive franchise, as they could deny a franchise for any reason or for no reason. See id. Qwest correctly argues that § 108 “provides voters with the unfettered and unreviewable discretion either to grant or deny a cable television franchise for any reason, or for no reason at all.”

Qwest (now CenturyLink), is Idaho's largest Internet Service Provider.In brief, the judge found cable franchises are granted or denied at the municipal level by local government, not through referendums. The City of Boulder was effectively abdicating its responsibility under federal law to manage the franchising process itself. There is no provision in federal law that allows citizens to directly vote a cable franchise agreement up or down, although voters can use the ballot box to remove local officials who do not represent the will of the majority.

More importantly, the judge recognized that turning the process over to local citizenry could unintentionally hand an incumbent provider a monopoly just by voting down any would-be competitor. Why would local citizens oppose competition? As we’ve seen in the fight for community broadband, incumbent providers will spend millions to keep would-be competitors out with a variety of scare tactics and propaganda. Providers have suggested community networks are guaranteed financial failures, will result in yards being torn up to install service, might result in local job losses, and will raise taxes whether residents want the service or not.

Judge Babcock also found that laws that could limit effective competition to incumbent cable companies are in direct conflict with the 1992 federal Cable Act:

The legislative history clearly supports the proposition that Congress was focused on fostering competition when passing the 1992 Act. The Senate Report regarding the Act states, “[I]t is clear that there are benefits from competition between two cable systems. Thus, the Committee believes that local franchising authorities should be encouraged to award second franchises.”

[...] Given the clear intent of Congress to employ § 541 as a vehicle for promoting vigorous competition, I conclude that § 108 is in conflict. Section 108 serves only to provide a significant hindrance to the competition that Congress clearly intended to foster. It forces the potential franchiser to spend money, time, advertising, and logistical support on an election. Thus, § 108 “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”

Perhaps the time has come to raise similar challenges in states where legislatures have passed community broadband bans or placed various impediments on providing service. If Qwest can successfully argue that such rules are designed to limit competition, local communities can certainly argue the panoply of anti-competition laws that were written by and for incumbent cable and phone companies deserve the same scrutiny.

Referendums are an inappropriate way to approve the entry of new competitors.

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