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Sixth Circuit Court of Appeals Reverses FCC Rule Allowing Public Broadband Expansion

6th CircuitA federal appeals court has reversed an effort by the Federal Communications Commission to pre-empt state laws restricting municipal broadband expansion in Tennessee and North Carolina, ruling the FCC exceeded its authority by interfering with both states’ rights to define the boundaries where the community broadband networks can and cannot operate.

In a near-unanimous decision (with some minor dissent from one judge), judges from the Sixth Circuit Court of Appeals found the FCC exceeded their authority.

“The FCC order essentially serves to re-allocate decision-making power between the states and their municipalities,” the court ruled. “This is shown by the fact that no federal statute or FCC regulation requires the municipalities to expand or otherwise to act in contravention of the preempted state statutory provisions. This preemption by the FCC of the allocation of power between a state and its subdivisions requires at least a clear statement in the authorizing federal legislation. The FCC relies upon § 706 of the Telecommunications Act of 1996 for the authority to preempt in this case, but that statute falls far short of such a clear statement. The preemption order must accordingly be reversed.”

In other words, the court ruled that the FCC’s belief that Section 706 of the Telecommunications Act of 1996 allowed it to pre-empt state broadband laws goes too far. The judges opined Congress would have to rewrite the law to clearly state it was acceptable for the federal branch of government to overrule how a community or state decides to draw boundaries for public utilities.

EPB is the municipal utility in Chattanooga, Tenn.

EPB is the municipal utility in Chattanooga, Tenn.

The ruling will have an immediate impact on plans by municipal utility EPB in Chattanooga and city-owned provider Greenlight in Wilson, N.C., to expand service outside of their respective service areas. EPB has been working inside the Tennessee legislature to overturn or change the current broadband law but has been unsuccessful so far. Comcast and AT&T have lobbied the Tennessee legislature to keep municipal competitors from expanding, even where neither company offers service.

“Ultimately, Tennessee’s broadband gap is a problem for Tennesseans, and we need a Tennessee solution,” said David Wade, president of EPB. “We will continue to work with the growing number of state legislators and grassroots citizens interested in removing the barriers that prevent EPB and other municipal providers from serving our neighbors in surrounding areas who have little or no access to broadband. We are further encouraged by Commissioner Randy Boyd’s interest in addressing the lack of broadband in rural areas. As the head of the Tennessee Department of Economic and Community Development, he is especially well positioned to join with state lawmakers in addressing this challenge on behalf of Tennesseans.”

Greenlight announces gigabit service for Wilson, N.C.

Greenlight announces gigabit service for Wilson, N.C.

North Carolina’s law was effectively drafted by Time Warner Cable, who shepherded the bill through the Republican-controlled state legislature, making huge political campaign contributions along the way, eventually winning enough votes to see the bill become law.

The ruling is a serious blow to FCC chairman Thomas Wheeler, who made municipal broadband expansion one of his active agenda items at the FCC. Wheeler believed the two state laws were not supposed to inhibit rural broadband expansion. Critics of the laws contend they were written and lobbied for by the same incumbent cable and phone companies that could eventually face competition from public broadband networks.

“Let’s be clear: industry-backed state laws to block municipal broadband only exist because pliant legislators are listening to their Big Cable and Big Telecom paymasters,” said Michael Copps, a former FCC commissioner. “This decision does not benefit our broadband nation.”

Wheeler

Wheeler

Wheeler tacitly agreed, saying today’s decision “appears to halt the promise of jobs, investment and opportunity that community broadband has provided in Tennessee and North Carolina.”

“[Since 2015], over 50 communities have taken steps to build their own bridges across the digital divide,” Wheeler said in written comments. “The efforts of communities wanting better broadband should not be thwarted by the political power of those who, by protecting their monopoly, have failed to deliver acceptable service at an acceptable price.”

The ruling can be appealed to the U.S. Supreme Court, and the FCC has an excellent chance of getting the high court to overturn today’s decision. Rulings issued by the Sixth Circuit were reversed by the Supreme Court 24 out of the 25 times they were reviewed in the five annual terms starting in October 2008 and ending in June 2013 — the highest number of any federal appellate court during that time period.

Broadband activists can also return to the two state legislatures and urge that the broadband laws be modified or repealed. Wheeler seems ready to join the fight.

“Should states seek to repeal their anti-competitive broadband statutes, I will be happy to testify on behalf of better broadband and consumer choice,” Wheeler said. “Should states seek to limit the right of people to act for better broadband, I will be happy to testify on behalf of consumer choice.”

Opponent of EPB Fiber Expansion: Get ‘Innovative’ Satellite Internet Instead

Cleveland's monument in the downtown district. (Image: City of Cleveland)

Cleveland’s monument in the downtown district. (Image: City of Cleveland)

AT&T, Comcast, and Charter have surrounded the city of Cleveland, Tenn., (population 42,774) for more than 20 years, yet after all that time, there are still many homes in the area that have no better than dial-up Internet access..

An effort to extend municipal utility EPB’s fiber to the home service into the community just northeast of Chattanooga on Interstate 75, has run into organized political opposition campaign, part-sponsored by two of the three communications companies serving the area.

Tennessee state Reps. Dan Howell and Kevin Brooks, both Cleveland-area Republicans, understand the implications. With AT&T, Comcast, and Charter resolute about not expanding their coverage areas anytime soon, the only chance Cleveland has of winning world-class broadband anytime in the reasonable future is through EPB, which has already offered to extend service to at least 1,000 customers in rural Bradley County in as little as three months. Most of those customers now rely on dial-up Internet services, because no broadband is available. Reps. Howell and Brooks are trying to get the the red tape out of the way so EPB can proceed, but the Tennessee legislature hasn’t budged.

EPB provides municipal power, broadband, television, and telephone service for residents in Chattanooga, Tennessee

EPB provides municipal power, broadband, television, and telephone service for residents in Chattanooga, Tennessee

There is a substantial difference between 30kbps dial-up and 100Mbps — one of the “budget” Internet tiers available from EPB. But some Tennessee lawmakers and corporate-backed special interest groups don’t care. To them, stopping public broadband expansion is a bigger priority, and they have attempted to stall, block, or prohibit municipal broadband, just to protect the current phone and cable companies that are among their generous contributors.

In 2010, Chattanooga became the first in America to enjoy gigabit residential broadband speed not because of AT&T, Comcast, or Charter, but because of the publicly owned electric company, EPB. So what’s the problem with that? The fact EPB spent $320 million on the fiber optic network — about $100 million of that coming from a federal grant — keeps some conservatives, corporate executives, and telecom shareholders up at night. They object to the public funding of broadband, calling it unfair competition for the two incumbent cable companies and one phone company, which have their own “privately funded” networks.

Republican Rep. Mike Carter, who serves Ooltewah, thinks that’s a lot of nonsense. He notes AT&T and other providers already receive government funding to service outlying areas that no other providers dare to tread for a lack of return on their investment.

cleveland_tn“[What] convinces me to back expansion of the EPB of Chattanooga is the fact that they received $111 million in stimulus funds, and in the next five years AT&T alone will receive $156 million of your money [in government funding] assessed every month on your bill to provide 10/4-gigabit service in those areas,” Carter explained to the Chattanooga Times-Free Press. “If the EPB’s $111 million matching grant somehow disqualifies those benefits going to my constituents, how do I explain to them that AT&T is receiving non-matching funds?”

“The issue then became, if it is necessary to create the world’s fastest Internet system, why would EPB not offer that for economic growth in its service area?” Carter continued. ” After I heard the story of the [gig’s] creation and realized that the money had already been spent, I asked myself if I would allow a firmly held principle of no competition with private enterprise by government to deny my constituents and neighbors the incredible benefits.”

Justin Owen, president and CEO of the Beacon Center of Tennessee, is dismissive of Carter’s willingness to bend his principles. In his view, those without Internet access have other options instead of getting EPB Fiber on the public dime.

Owen

Owen

“You can get satellite Internet,” said Owen, who added that governments that invest in fiber technology could be “left behind by disruptive innovation,” which in his mind could be satellite Internet. Satellite customers would disagree.

“Horrible, horrible, horrible, and more horrible,” wrote Trey from another Cleveland — this time in Texas. “Speeds are consistently less than 2Mbps and they advertise up to 12. Try a cell phone booster and use that before resorting to satellite Internet.”

Hundreds of customers shared similar stories about their experience with satellite Internet, and they don’t believe it will be disruptive to anything except their bank account.

Owen and his group have not revealed many details about where its funding comes from, but the group is a member of the State Policy Network, which receives financial support from AT&T, Time Warner Cable, Verizon and Comcast. The group’s former leader, Drew Johnson, was also a former opinion page columnist at the Times-Free Press and used column space to criticize EPB and other issues that ran contrary to AT&T’s agenda in Tennessee.

Despite support from the Chattanooga area’s Republican delegation, many legislators from outside the area remain firmly in support of the telecom companies and their wish to limit or destroy community broadband projects like EPB, claiming they are redundant or are based on faulty business plans likely to fail. But while Comcast used to dismiss EPB’s gigabit service as unnecessary and AT&T considered gigabit speeds overkill, both companies are now racing to deploy their own gigabit networks in Chattanooga to compete.

The residents of Cleveland without broadband today probably won’t have it tomorrow or anytime soon. Many are hoping the Tennessee legislature will relent and let EPB solve their broadband issues once and for all. Cleveland resident Aaron Alldaffer is trying to help gin up interest in a renewed legislative push for EPB Fiber expansion with a Change.org petition.

The BBC World Service Global Business program visited Chattanooga in May 2016 to explore EPB Fiber and discuss its implications. (29 minutes)

You must remain on this page to hear the clip, or you can download the clip and listen later.

Attacks on Tennessee’s EPB Municipal Broadband Fall Flat in Light of Facts

latinos for tnThe worst enemy of some advocacy groups writing guest editorial hit pieces against municipal broadband is: facts.

Raul Lopez is the founder and executive director for Latinos for Tennessee, a 501C advocacy group that reported $0 in assets, $0 in income, and is not required to file a Form 990 with the Internal Revenue Service as of 2014. Lopez claims the group is dedicated to providing “Latinos in Tennessee with information and resources grounded on faith, family and freedom.”

But his views on telecom issues are grounded in AT&T and Comcast’s tiresome and false talking points about publicly owned broadband. His “opinion piece” in the Knoxville News Sentinel was almost entirely fact-free:

It is not the role of the government to use taxpayer resources to compete with private industry. Government is highly inefficient — usually creating an inferior product at a higher price — and is always slower to respond to market changes. Do we really want government providing our Internet service? Government-run health care hasn’t worked so well, so why would we promote government-run Internet?

Phillip Dampier: Corporate talking point nonsense regurgitated by Mr. Lopez isn't for the good of anyone.

Phillip Dampier: Corporate talking point nonsense regurgitated by Mr. Lopez isn’t for the good of anyone.

Lopez’s claim that only private providers are good at identifying what customers want falls to pieces when we’re talking about AT&T and Comcast. Public utility EPB was the first to deliver gigabit fiber to the home service in Chattanooga, first to deliver honest everyday pricing, still offers unlimited service without data caps and usage billing that customers despise, and has a customer approval and reliability rating Comcast and AT&T can only dream about.

Do the people of Chattanooga want “the government” (EPB is actually a public utility) to provide Internet service? Apparently so. Last fall, EPB achieved the status of being the #1 telecom provider in Chattanooga, with nearly half of all households EPB serves signed up for at least one EPB service — TV, broadband, or phone service. Comcast used to be #1 until real competition arrived. That “paragon of virtue’s” biggest private sector innovation of late? Rolling out its 300GB usage cap (with overlimit fees) in Chattanooga. That’s the same cap that inspired more than 13,000 Americans to file written complaints with the FCC about Comcast’s broadband pricing practices. EPB advertises no such data caps and has delivered the service residents actually want. Lopez calls that “hurting competition in our state and putting vital services at risk.”

Remarkably, other so-called “small government” advocates (usually well-funded by the telecom industry) immediately began beating a drum for Big Government protectionism to stop EPB by pushing for a state law to ban or restrict publicly owned networks.

Lopez appears to be on board:

Our Legislature considered a bill this session that would repeal a state municipal broadband law that prohibits government-owned networks from expanding across their municipal borders. Thankfully, it failed in the House Business and Utilities Subcommittee, but it will undoubtedly be back again in future legislative sessions. The legislation is troubling because it will harm taxpayers and stifle private-sector competition and innovation.

Or more accurately, it will make sure Comcast and AT&T can ram usage caps and higher prices for worse service down the throats of Tennessee customers.

epb broadband prices

EPB’s broadband pricing. Higher discounts possible with bundling.

Lopez also plays fast and loose with the truth suggesting the Obama Administration handed EPB a $111.7 million federal grant to compete with Comcast and AT&T. In reality, that grant was for EPB to build a smart grid for its electricity network. That fiber-based grid is estimated to have avoided 124.7 million customer minutes of interruptions by better detection of power faults and better methods of rerouting power to restore service more quickly than in the past.

EPB provides municipal power, broadband, television, and telephone service for residents in Chattanooga, Tennessee

EPB provides municipal power, broadband, television, and telephone service for residents in Chattanooga, Tennessee

Public utilities can run smart grids and not sell television, broadband, and phone service, leaving that fiber network underutilized. EPB decided it could put that network to good use, and a recent study by University of Tennessee economist Bento Lobo found EPB’s fiber services helped generate between 2,800 and 5,200 new jobs and added $865.3 million to $1.3 billion to the local economy. That translates into $2,832-$3,762 per Hamilton County resident. That’s quite a return on a $111.7 million investment that was originally intended just to help keep the lights on.

So EPB’s presence in Chattanooga has not harmed taxpayers and has not driven either of its two largest competitors out of the city.

Lopez then wanders into an equally ridiculous premise – that minority communities want mobile Internet access, not the fiber to the home service EPB offers:

Not all consumers access the Internet the same way. According to the Pew Research Center, Hispanics and African-Americans are more likely to rely on mobile broadband than traditional wire-line service. Indeed, minority communities are even more likely than the population as a whole to use their smartphones to apply for jobs online.

[…] Additionally, just like people are getting rid of basic at-home telephone service, Americans, especially minorities, are getting rid of at-home broadband. In 2013, 70 percent of Americans had broadband at home. Just two years later, only 67 percent did. The decline was true across almost the entire demographic board, regardless of race, income category, education level or location. Indeed, in 2013, 16 percent of Hispanics said they relied only on their smartphones for Internet access, and by 2015 that figure was up to 23 percent.

That drop in at-home broadband isn’t because fewer Americans have access to wireless broadband, it’s because more are moving to a wireless-only model. The bureaucracy of government has trouble adapting to changes like these, which is why government-owned broadband systems are often technologically out of date before they’re finished.

But Lopez ignores a key finding of Pew’s research:

In some form, cost is the chief reason that non-adopters cite when permitted to identify more than one reason they do not have a home high-speed subscription. Overall, 66% of non-adopters point toward either the monthly service fee or the cost of the computer as a barrier to adoption.

What community broadband provides communities the big phone and cable companies don't.

So it isn’t that customers want to exclusively access Internet services over a smartphone, they don’t have much of a choice at the prices providers like Comcast and AT&T charge. Wireless-only broadband is also typically usage capped and so expensive that average families with both wired broadband and a smartphone still do most of their data-intensive usage from home or over Wi-Fi to protect their usage allowance.

EPB runs a true fiber to the home network, Comcast runs a hybrid fiber-coax network, and AT&T mostly relies on a hybrid fiber-copper phone wire network. Comcast and AT&T are technically out of date, not EPB.

Not one of Lopez’s arguments has withstood the scrutiny of checking his claims against the facts, and here is another fact-finding failure on his part:

Top EPB officials argue that residents in Bradley County are clambering for EPB-offered Internet service, but the truth is Bradley County is already served by multiple private Internet service providers. Indeed, statewide only 215,000 Tennesseans, or approximately 4 percent, don’t have broadband access. We must find ways to address the needs of those residents, but that’s not what this bill would do. This bill would promote government providers over private providers, harming taxpayers and consumers along the way.

Outlined section shows Bradley County, Tenn., east of Chattanooga.

Outlined section shows Bradley County, Tenn., east of Chattanooga.

The Chattanoogan reported it far differently, talking with residents and local elected officials on the ground in the broadband-challenged county:

The legislation would remove territorial restrictions and provide the clearest path possible for EPB to serve customers and for customers to receive high-speed internet.

State Rep. Dan Howell, the former executive assistant to the county mayor of Bradley County, was in attendance and called broadband a “necessity” as he offered his full support to helping EPB, as did Tennessee State Senator Todd Gardenhire.

“We can finally get something done,” Senator Gardenhire said. “The major carriers, Charter, Comcast and AT&T, have an exclusive right to the area and they haven’t done anything about it.”

So while EPB’s proposed expansion threatened Comcast and AT&T sufficiently to bring out their lobbyists demanding a ban on such expansions in the state legislature, neither company has specific plans to offer service to unserved locations in the area. Only EPB has shown interest in expansion, and without taxpayer funds.

The facts just don’t tell the same story Lopez, AT&T, and Comcast tell and would like you to believe. EPB has demonstrated it is the best provider in Chattanooga, provides service customers want at a fair price, and represents the interests of the community, not Wall Street and investors Comcast and AT&T listen to almost exclusively. Lopez would do a better job for his group’s membership by telling the truth and not redistributing stale, disproven Big Telecom talking points.

Tennessee Waltz: State Legislature + Big Telecom Lobbyists = No Rural Broadband Expansion

lobbyist-cashEntrenched telecom industry lobbyists and a legislature enriched by their campaign contributions chose the interests of AT&T, Comcast, and Charter Communications over the broadband needs of rural Tennessee, killing a municipal broadband expansion bill already scaled down to little more than a demonstration project.

The Tennessee House Business and Utilities Subcommittee voted 5-3 Tuesday to end efforts to bring much-needed Internet access to rural Hamilton and Bradley counties, long ignored or underserved by the state’s dominant telecom companies. Rep. Kevin Brooks’ (R-Cleveland) original bill would have allowed Chattanooga-based EPB and other publicly owned utility services to expand fiber broadband and television service to other electric co-ops around the state.

Realizing his bill would be voted up or down by members of a committee that included one former AT&T executive and others receiving substantial campaign contributions from some of Tennessee’s largest phone and cable companies, he reduced the scale of his own bill to a simple demonstration project serving a limited number of customers.

The bill failed anyway, in a vote that took less than a minute.

The Chattanooga Times Free Press described the scene:

Rep. Marc Gravitt (R-East Ridge) voted for Brooks’ amendment and Rep. Patsy Hazlewood (R-Signal Mountain), a one-time AT&T executive, voting against it.

As Rep. Kent Calfee (R-Kingston), the subcommittee’s chairman, prepared to move on to the next bill, he suddenly realized the original bill remained before the panel.

“I’m sorry,” Calfee, who voted against the amendment, told Brooks as the Cleveland lawmaker turned to leave. “It’s the amendment [that failed]. Is there any need to vote on the bill?”

Brooks replied, “The amendment makes the bill. I’d love a vote on the bill.”

“Sorry about that,” Calfee said.

And that was that.

Residents and business people alike in northern Hamilton and portions of Bradley counties say they either have no service, lousy service or wireless service that makes it very expensive to upload and download documents for work and school.

EPB provides municipal power, broadband, television, and telephone service for residents in Chattanooga, Tennessee

EPB provides municipal power, broadband, television, and telephone service for residents in Chattanooga, Tenn.

“It’s a testament to the power of lobbying against this bill and not listening to our electorate,” Brooks told reporters. “The voice of the people today was not heard. And that’s unfortunate.”

Brooks’ bill did attract considerable interest – from telecom industry lobbyists who flooded the state legislative offices with a mission of killing it. The Tennessee newspaper said a “platoon of lobbyists and executives, including AT&T Tennessee President Joelle Phillips,” poured into the House hearing room or watched on nearby video screens to scrutinize the vote.

“I heard they hired 27 lawyers to fight,” Brooks said.

Rural Tennessee Republicans were disappointed by the outcome, which leaves substantial parts of their districts unwired for broadband.

“[This] was the perfect opportunity for EPB to be a pilot and to prove they can do what they say they can do,” said Rep. Dan Howell (R-Georgetown). “And if they can’t do it, it’s a perfect opportunity to put it to rest forever. They wouldn’t even let us do a pilot to prove that EPB can do what it claimed.”

Brooks

Brooks

Rep. Mike Carter (R-Ooltewah), also has a bill being held up in the legislature that would allow expansion of public broadband with the consent of citizen members of co-ops and elected leaders of the rural utilities.

Carter didn’t seem too surprised municipal broadband bills like his were being delayed or killed in the state legislature at the behest of AT&T and other companies.

“You just don’t go up against Goliath unless you have your sling and five stones. I just didn’t have my five stones today,” Carter said.

AT&T declared the bill was flawed, arguing in a statement it was not opposed to municipal broadband, so long as it was targeted only to customers unserved by any other provider. AT&T complained Brooks’ bill lacked language protecting them from unwanted competition.

“None of the bills considered … has any provision that would limit government expansion to unserved areas or even focus on those areas,” AT&T wrote.

Less than 24 hours after the vote ended Charter Communications had a special message for members of the legislature.

The cable operator sent invitations to Tennessee lawmakers giving them free airtime to star in their own “public service announcements” that will blanket the screens of Charter cable TV customers, giving the politicians free exposure.

Rep. Calfee's second largest contributor is AT&T.

Rep. Calfee’s second largest contributor is AT&T.

Charter’s director of government affairs for Tennessee was the executive extending the invitation.

“As a leading broadband communications provider and cable operator serving customers in Tennessee, Charter is committed to providing compelling public affairs programming and public service announcements,” said Nick Pavlis, Charter’s chief lobbyist in the state and a Knoxville city councilman. “We hope you will take advantage of this opportunity to speak directly to your constituents. Taping times are available on a first-come, first-served basis, so we encourage you to schedule yours as soon as possible.”

“Right now it would appear to those watching from the outside that big business won and big business is now reciprocating,” said Brooks.

Sen. Todd Gardenhire (R-Chattanooga) called the invitation inappropriate.

“Charter has done everything they could possibly do to deny rural Bradley broadband, Internet/content service,” Gardenshire told the Times Free Press.

“Well, my first inclination is to say I’m surprised, coming the day after they killed the broadband bill in committee,” added Howell. “[It is] kind of ironic now that they’re asking people to come forward and make public service announcements about how good their service is. I’m kind of stunned.”

Municipal Provider EPB Introduces Chattanooga to 10Gbps Residential Broadband: $299 a Month

nextnetThe first provider in the country to offer community-wide gigabit fiber broadband to residential customers today announced it would far surpass the rest of the marketplace with a new 10 gigabit broadband package dubbed NextNet, available throughout the Chattanooga, Tenn. service area of municipal utility EPB for $299 a month.

“Five years ago, Chattanooga and Hamilton County became the first in the United States to offer up to 1 Gig Internet speeds,” said Harold DePriest, president and CEO of EPB. “Today, we become the first community in the world capable of delivering up to 10 Gigs to all 170,000 households and businesses in our service area.”

Its largest competitor — Comcast, charges $299 for up to 2Gbps service in limited service areas, if the customer can wait 6-8 weeks for installation, can afford up to $1,000 in activation and installation fees, and can commit to a two-year contract with a steep early termination fee. EPB will offer its five-times-faster-than-Comcast service to any customer with no lengthy waiting period, no contract, and free installation.

EPB will leverage Alcatel-Lucent’s TWDM-PON broadband technology to deliver scalable fiber broadband, and is also introducing 5 and 10Gbps plans for small businesses and 3, 5, and 10Gbps plans for larger commercial customers. Customers will receive an ONT unit installed by technicians about two weeks before installation is complete. The box, about the size of a DVD player, is required to support the new high speeds. It is usually mounted on a wall near the computer.

“Chattanooga’s 10 Gig fiber optic network is a world-class platform for innovation,” DePriest said. “In recent years, the need for faster Internet speeds has increased rapidly. Chattanooga is the perfect place for companies to enhance their productivity today and test the applications everyone in the country will want tomorrow.”

Despite detractors that claim municipal/public broadband services are economic failures waiting to happen, EPB has delivered tangible economic benefits across the Chattanooga region and is now recognized internationally as one of the country’s most successful public broadband projects.

A study recently released by University of Tennessee at Chattanooga Finance professor Bento Lobo shows “the Gig Network” helped the Chattanooga area generate at least 2,800 new jobs and at least $865.3 million in economic and social benefits. The study also found the EPB smart grid, which is the cornerstone application of the utility’s community-wide fiber optic network, has allowed customers to avoid an estimated 124.7 million minutes of electric service interruptions by automatically re-routing power (often in less than a second) to prevent an outage or dramatically reduce outage duration.

EPB has proven so successful, it has attracted visitors from around the world to study how community fiber broadband can transform a local economy.

EPB Celebrates 4th Anniversary With Free Speed Upgrades And Price Cuts; $69.99 for 1Gbps Service

epbEPB this morning celebrated its fourth anniversary by thanking Chattanooga residents for supporting the utility’s fiber network with a series of price cuts and speed increases.

Beginning today, EPB’s fiber broadband customers are getting the following upgrades and savings:

  • 50/50Mbps customers get a free upgrade to 100/100Mbps service with no change in their current price ($57.99/month);
  • 100/100 and 250/250Mbps customers get a free upgrade to 1,000/1,000Mbps service;
  • 1,000/1,000Mbps customers now paying $349 a month will see their bills slashed to $69.99 a month, a savings of $230 a month;
  • EPB’s business broadband customers will be contacted individually to coordinate the speed upgrades.

gig_speedsCustomers will see the new speeds provisioned within the next two weeks. At least 3,000 residential customers will be upgraded to gigabit service.

EPB also reported this morning it has 55,000 broadband customers.

EPB is one of the nation’s most successful municipal fiber providers and is proving itself a major challenger to Chattanooga’s cable competitor Comcast and incumbent phone company AT&T.

AT&T’s U-verse is the least capable network in Chattanooga, because its fiber-to-the-neighborhood technology currently limits AT&T’s maximum broadband speed in the city to 24/3Mbps. AT&T says it is working on doubling or tripling speeds, but it still leaves U-verse far behind Comcast and EPB.

Comcast has lost at least 47,000 customers in Chattanooga, estimates EPB CEO Harold DePriest. Comcast originally had 122,000 customers on the EPB grid when EPB launched fiber broadband. This year, Comcast has about 75,000 customers and is expected to see numbers decline further in 2014 to about 60,000 customers.

The best Comcast offers is 505/20Mbps service in select cities, with a price tag of $400 a month.

The best Comcast offers is 505/20Mbps service in select cities, with a price tag of $400 a month.

Neither Comcast or AT&T is competing on price for higher speed broadband in Chattanooga. Comcast charges $114.95 a month for 105/20Mbps service and offers 505/100Mbps service in a handful of other cities, for $399.95 a month. Comcast is also currently testing the reintroduction of usage caps and overlimit fees in several markets.

AT&T charges $65 a month for 24/3Mbps service — its fastest — with a 250GB monthly usage cap, currently not enforced. For $5 more, EPB customers get 1,000/1,000Mbps with no usage limits or overlimit fees.

EPB has been criticized by conservative groups, bloggers, and its competitors that argue municipal utilities have no business being in the broadband business. Most of these groups predicted EPB Fiber would deliver a costly failure for Chattanooga utility ratepayers. The utility has also come under repeated fire from the conservative editorial page in the Chattanooga Times-Free Press, often from ex-editorial writer Drew Johnson, who was fired in August.

DePriest can afford to take the criticism all in stride. He has been with the publicly owned utility for 42 years and has seen Chattanooga transformed from its old manufacturing roots into an increasingly high-tech city, thanks in part to EPB’s robust broadband infrastructure that has exceeded even EPB’s expectations.

EPB’s original business plan called for 28,000 customers to break even, with an estimated ceiling of 43,000 customers that would be willing to sign up. EPB has already passed both estimates with additional growth anticipated. DePriest even predicts EPB could surpass Comcast — the city’s biggest broadband and cable TV player — in market share by the end of next year.

Far from being a financial failure, EPB Fiber is now covering the $19 million debt payment incurred by the utility’s electric business, protecting Chattanooga residents from an electricity rate increase.

EPB is also making money offering advice to other cities who want to launch their own publicly owned fiber networks and avoid making costly mistakes. Consulting services will net EPB more than $1 million over the next three years.

EPB CEO Harold DePriest announces speed increases and price cuts for customers to celebrate the utility’s fourth anniversary in the broadband business. (3 minutes)

Correction: The original story misreported Comcast’s upstream speed for its 505Mbps tier as 20Mbps. It is, as corrected above, 100Mbps.

When Do You “Need” Faster Speeds? When Competition Arrives Offering Them

broadband dead end“We just don’t see the need of delivering [gigabit broadband] to consumers.” — Irene Esteves, former chief financial officer, Time Warner Cable, February 2013

“For some, the discussion about the broadband Internet seems to begin and end on the issue of ‘gigabit’ access. The issue with such speed is really more about demand than supply. Most websites can’t deliver content as fast as current networks move, and most U.S. homes have routers that can’t support the speed already available.” — David Cohen, chief lobbyist, Comcast Corp., May 2013

“We don’t focus on megabits, we don’t focus on gigabits, we focus on activities. We go to the activity set to get a sense of what customers are actually doing and the majority of our customers fit into that 6Mbps or less category.” — Maggie Wilderotter, CEO, Frontier Communications, May 2013

“It would cost multiple billions” to upgrade Cox’s network to offer gigabit speeds to all its customers. — Pat Esser, CEO, Cox Communications, Pat Esser, chief executive of Cox Communications Inc., January 2013

“The problem with [matching Google Fiber speeds] is even if you build the last mile access plant to [offer gigabit speeds], there is neither the applications that require that nor a broader Internet backbone and servers delivering at that speed. It ends up being more about publicity and bragging. There has been a whole series of articles in the paper about ‘I’m a little startup business and boy it is really great I can get this’ and my reaction is we already have plant there that can deliver whatever it is they are talking about in those articles, which is usually not stuff that requires that high-speed.” — Glenn Britt, CEO, Time Warner Cable, December 2012

“Residential customers, at this time, do not need the bandwidth offered with dedicated fiber – however, Bright House has led the industry in comprehensively deploying next-generation bandwidth services (DOCSIS 3.0) to its entire footprint in Florida – current speeds offered are 50Mbps with the ability to offer much higher. We provision our network according to our customers’ needs.” – Don Forbes, Bright House Networks, February 2011

‘Charter [Cable] is not seeing enough demand to warrant extending fiber to small and medium-sized businesses — and certainly not to every household.’ — “Speedier Internet Rivals Push Past Cable“, New York Times, Jan. 2, 2013

Unless you live in Kansas City, Austin, in a community where public broadband exists, or where Verizon FiOS provides its fiber optic service, chances are your broadband speeds are not growing much, but are getting more expensive. The only thing innovative coming from the local phone or cable company is a constant effort to convince customers they don’t need faster Internet access anyway.

At least until a competitor threatens to shake up the comfortable status quo.

Time Warner Cable claims they are perfectly comfortable offering residential customers no better than 50/5Mbps, except in markets like Kansas City (and soon in Texas) where 100Mbps is more satisfying. Why is a glass Time Warner claims is full to the brim everywhere else in the country only half-full in Kansas City? Google Fiber might be the answer. It offers 1,000/1,000Mbps service for less money than Time Warner used to charge for 50Mbps service, and Google is also headed to Austin.

special reportAT&T scoffed at following Verizon into the world of fiber optic broadband, where broadband speeds are limited only by the possibilities. Instead, they built their half-fiber, half-Alexander Graham Bell-era copper wire hybrid network on the cheap and ended up with broadband speeds topping out around 24Mbps, at least in a perfect AT&T world, assuming everything was ideal between your home and their central office.

At the time U-verse was first breaking ground, cable broadband’s “good enough for you” top Internet speed was typically 10-20Mbps. Now that incrementally faster cable Internet speeds are available from recent DOCSIS 3.0 cable upgrades, AT&T is coming back with an incremental upgrade of its own, to deliver around 75Mbps.

It is still slower than cable, but AT&T thinks it is fast enough for their customers, except in Austin, where Google Fiber provoked the company to claim it would build its own 1,000Mbps fiber network to compete (if it got everything on its Christmas Wish List from federal, state, and local governments).

Are you starting to see a trend here? Competition can turn providers’ investment frowns upside down and get customers faster Internet access.

Wilderotter: Most of our customers are satisfied with 6Mbps broadband.

Wilderotter: Most of our customers are satisfied with 6Mbps broadband.

In rural markets were Frontier Communications faces far less competition from well-heeled cable companies, the company can claim it doesn’t believe most of its customers need north of 6Mbps to do important things on the Internet. If they did, where would they go to do them?

Where Comcast and AT&T directly compete, major Internet speed increases are a matter of “why bother – who needs them.” Comcast is more generous where it faces down Verizon FiOS. AT&T also knows the clock is ticking where Google Fiber is coming to town.

Verizon FiOS, Google Fiber, and a number of community-owned fiber to the home broadband networks like EPB in Chattanooga and Greenlight in Wilson, N.C. seem more interested in boosting speeds to build market share, increase revenue to cover their expenses, and make a marketing point their networks are superior. They respond to requests for speed upgrades differently — “why not?”

Verizon figured out offering 50/25Mbps service was simple to offer and easy to embrace. Two clicks on a FiOS remote control and $10 more a month gets a major speed upgrade for basic Internet customers that used to get 15/5Mbps service. Verizon management reports they are pleased with the number of customers signing up.

In Chattanooga, Tenn. EPB Fiber offered gigabit Internet service because, in the words of its managing director, “it could.” The community-owned utility did not even know how to price residential gigabit service when it first went on offer, but the costs to EPB to offer those speeds are considerably lower over fiber to the home broadband infrastructure.

Broadband customers in Chattanooga, Kansas City and Austin are not too different from customers in Knoxville, Des Moines, and Houston. But the available broadband speeds in those cities sure are.

LUS Fiber in Lafayette, La. changed the song Cox was singing about their ‘adequate’ broadband speeds. Earlier this year, Cox unveiled up to 150/25Mbps service to cut the number of departing customers headed to the community owned utility, already offering those speeds.

Convincing Wall Street that spending money to upgrade networks to next generation technology will earn more money in the long run has failed miserably as a strategy.

“Competitors have been overbuilding, investors are wondering where the returns are,” said Mark Ansboury, president and co-founder of GigaBit Squared. “What you’re seeing is an entrenchment, companies leveraging what they already have in play.”

With North American broadband prices rising, and some cable companies earning 90-95% margins selling broadband, one might think there is plenty of money available to spend on broadband upgrades. Instead, investors are receiving increased dividend payouts, executive compensation packages are swelling as a reward for maximizing shareholder value, and many companies are buying back their stock, refinancing or paying off debt instead of pouring money into major network upgrades.

That is not true in Europe, where providers are making headlines with major network improvements and speed increases, all while charging much less than what North Americans pay for broadband service.

UPC Netherlands is Holland's second biggest cable company and it is in the middle of a broadband speed war with fiber to the home providers.

UPC Netherlands is Holland’s second biggest cable company and is in the middle of a broadband speed war with fiber to the home providers.

In the Netherlands, the very concept of Google Fiber’s affordable gigabit speeds terrify cable operators like UPC Netherlands, especially when existing fiber to the home providers in the country are taking Google’s cue and advertising gigabit service themselves. UPC rushed to dedicate up to 16 bonded cable channels to boost cable broadband speeds to 500Mbps in recent field trials, without giving any serious thought to the cable operators in the United States that argue customers don’t need or want the faster Internet speeds fiber offers.

“We had to address it head on very recently because of the fiber (competition)” said vice president of technology Bill Warga. “The company is called Reggefiber in the Netherlands. What they’re touting is a 1Gbps service, [the same speed] upstream and downstream. We came out with 500Mbps service. We had to build a special modem because (DOCSIS) 3.1 chips aren’t out yet. We had to double up on the chips in the modem and put it out there because we had to have a competing product, if anything just in the press. That was a reaction but that tells you how quickly in a marketplace that something can move.”

Despite that, groupthink among cable industry attendees back home at the SCTE Rocky Mountain Chapter Symposium agreed that Google Fiber was a political and marketing stunt, “since the majority of users don’t need those types of speed.”

Who does need and want 500Mbps? Executives at UPC, who have it installed in their homes, admits Warga. But cost can also impact consumer demand. Currently, the most popular legacy UPC broadband package offers 25Mbps for €25 ($32.50). The company now sells 60/6Mbps for €52,50 ($48.75), 100/10Mbps for €42,50 ($55.25) or 150-200/10Mbps for €52,50 ($68.25).

Warga also admits the competition has put UPC in a speed race, and boosted speeds are coming fast and furious.

“They’ll come in and say they’re 100, or 101Mbps we’ll come back and say we’re 110 or 120, or 130Mbps,” Warga said. “It’s a bit of a cat and mouse game, but we always feel like we can be ahead. For us DOCSIS 3.1 can’t come soon enough.”

The Wall Street Journal investigates why cable companies are getting stingy with broadband speed upgrades while gigabit fiber networks are springing up around the country. (4 minutes)

Mowing the Astroturf: Tennesee’s Pole Attachment Fee Derided By Corporate Front Groups

phone pole courtesy jonathan wCable operators and publicly owned utilities in Tennessee are battling for control over the prices companies pay to use utility poles, with facts among the early casualties.

The subject of “pole attachment fees” has been of interest to cable companies for decades. In return for permission to hang cable wires on existing electric or telephone poles owned by utility companies, cable operators are asked to contribute towards their upkeep and eventual replacement. Cable operators want the fees to be as low as possible, while utility companies have sought leeway to defray rising utility pole costs and deal with ongoing wear and tear.

Little progress has been made in efforts to compromise, so this year two competing bills have been introduced by Republicans in the state legislature to define “fairness.” One is promoted by a group of municipal utilities and the other by the cable industry and several corporate-backed, conservative front groups claiming to represent the interests of state taxpayers and consumers.

Some background: Tennessee is unique in the pole attachment fee fight, because privately owned power companies bypassed a lot of the state (and much of the rest of the Tennessee Valley and Appalachian region) during the electrification movement of the early 20th century. Much of Tennessee is served by publicly owned power companies, which also own and maintain a large percentage of utility poles in the state.

Some of Tennessee’s largest telecom companies believe they can guarantee themselves low rates by pitching a case of private companies vs. big government utilities, with local municipalities accused of profiteering from artificially high pole attachment rates. Hoping to capitalize on anti-government sentiment, “small government” conservatives and telecom companies want to tie the hands of the pole owners indefinitely by taking away their right to set pole attachment rates.

The battle includes fact-warped editorials that distort the issues, misleading video ads, and an effort to conflate a utility fee with a tax. With millions at stake from pole attachment fees on tens of thousands of power poles throughout the state, the companies involved have launched a full-scale astroturf assault.

Grover Norquist’s Incendiary “Pole Tax”

Conservative Grover Norquist, president of Americans for Tax Reform wrote that the pole attachment fee legislation promoted by public utilities would represent a $20 million dollar “tax increase” from higher cable and phone bills. Even worse, Norquist says, the new tax will delay telecom companies from rushing new investments on rural broadband.

Norquist

Norquist

In reality, Americans for Tax Reform should be rebranded Special Interests for Tax Reform, because the group is funded by a variety of large tobacco corporations, former clients of disgraced lobbyist Jack Abramoff, and several wealthy conservative activists with their own foundations.

Norquist’s pole “tax increase” does not exist.

The Federal Communications Commission (FCC) provides guidelines and a formula for determining pole attachment rates for privately owned utilities, but permits states to adopt their own regulations. Municipal utilities are exempted for an important reason — their rates and operations are often already well-regulated.

Stop the Cap! found that pole attachment revenue ends up in the hands of the utility companies that own and keep up the poles, not the government. Municipal utilities stand on their own — revenue earned by a utility stays with the utility. Should a municipal utility attempt to gouge other companies that hang wires on those poles, mechanisms kick in that guarantee it cannot profit from doing so.

A 2007 study by the state government in Tennessee effectively undercut the cable industry’s argument that publicly owned utilities are overcharging cable and phone companies that share space on their poles. The report found that “pole attachment revenues do not increase pole owners’ revenue in the long run.”¹

The Tennessee Valley Authority, which supplies electricity across Tennessee, regularly audits the revenues and costs of its municipal utility distributors and sets end-user rates accordingly. The goal is to guarantee that municipal distributors “break even.” Any new revenue sources, like pole attachment fees, are considered when setting wholesale electric rates. If a municipal utility overcharged for access to its poles, it will ultimately gain nothing because the TVA will set prices that take that revenue into account.

Freedom to Distort: The Cable Lobby’s Astroturf Efforts

Freedom to distort

Freedom to distort

Another “citizens group” jumping into the battle is called “Freedom to Connect,” actually run by the Tennessee Cable Telecommunications Association (TCTA). Most consumers won’t recognize TCTA as the state cable lobby. Almost all will have forgotten TCTA was the same group that filed a lawsuit to shut down EPB’s Fiber division, which today delivers 1,000Mbps broadband service across the city and competes against cable operators like Comcast and Charter Cable.

One TCTA advertisement claims that some utilities are planning “to double the fees broadband providers pay to the state’s government utilities.”

In reality, cable companies have gone incognito, hiding their identity by rebranding themselves as “broadband providers.” No utility has announced it plans to “double” pole attachment fees either.

TCTA members came under fire at a recent hearing attended by state lawmakers when Rep. Charles Curtiss (D-Sparta) spoke up about irritating robocalls directed at his constituents making similar claims.

“What was said was false,” Curtiss told the cable representatives at the hearing. “You’ve lost your integrity with me. Whoever made up your mind to do that, you’re in the wrong line of work.”

TCTA — Tennessee’s cable industry lobbying group, released this distorted advertisement opposing pole attachment fee increases.  (1 minute)

The Chattanooga Free-Press’ Drew Johnson: Independent Opinion Page Editor or Well-connected Activist with a Conflict of Interest?

Johnson

Johnson (Times Free Press)

In its ad campaign, the TCTA gave prominent mention to an article in Chattanooga’s Times-Free Press from Feb. 27: “Bill Harms Consumers, Kills Competition.”

What the advertisement did not say is it originated in an editorial published by Drew Johnson, who serves as the paper’s conservative opinion editor. Johnson has had a bone to pick with Chattanooga’s public utility EPB since it got into the cable television and broadband business.

That may not be surprising, since Johnson is still listed as a “senior fellow” at the “Taxpayers Protection Alliance,” yet another corporate and conservative-backed astroturf group founded by former Texas congressman Dick Armey of FreedomWorks fame.

Johnson’s journalism credentials? He wrote a weekly column for the conservative online screed NewsMax, founded and funded by super-wealthy Richard Mellon Scaife and Christopher Ruddy, both frequent donors to conservative, pro-business causes.

TPA has plenty to hide — particularly the sources of their funding. When asked if private industry backs TPA’s efforts, president David Williams refused to come clean.

“It comes from private sources, and I don’t reveal who my donors are,” he told Environmental Building News in January.

Ironically, Johnson is best known for aggressively using Tennessee’s open records “Sunshine” law to get state employee e-mails and other records looking for conflicts of interest or scandal.

Newspaper readers may want to ask whether Johnson represents the newspaper, an industry-funded sock puppet group, or both.  They also deserve full disclosure if the TPA receives any funding from companies that directly compete with EPB.

The Institute from ALEC: The Institute for Policy Innovation’s Innovative Way to Funnel AT&T and Comcast Money Into the Fight

Provider-backed ALEC advocates for the corporate interests that fund its operations.

Provider-backed ALEC advocates for the corporate interests that fund its operations.

Another group fighting on the side of the cable and phone companies against municipal utilities is the Institute for Policy Innovation. Policy counsel Bartlett D. Cleland claimed the government is out to get private companies that want space on utility poles.

“The proposed new system in HB1111 and SB1222 is fervently supported by the electric cooperatives and the government-owned utilities for good reason – they are merely seeking a way to use the force of government against their private sector competitors,” Cleland said. “The proposal would allow them to radically raise their rates for pole attachments to multiples of the national average.”

The facts don’t match Cleland’s rhetoric.

In reality, the state of Tennessee found in their report on the matter in 2007 that Tennessee’s pole attachment fees are “not necessarily out of line with those in other states.”²

In fact, some of the state’s telecom companies seemed to agree:

  • EMBARQ (now CenturyLink) provided data on fees received from other service providers in Tennessee, Virginia, South and North Carolina. In these data, Tennessee’s rates ($36.02 – $47.41) are similar to those in North Carolina ($23.12-$52.85) and Virginia ($28.94 – $35.77). Rates were lower in South Carolina.
  • Cable operators, who have less infrastructure on poles than telephone and electric utilities, paid even less. Time Warner Cable provided mean rates per state showing Tennessee ($7.70) in the middle of the pack compared to Florida ($9.83) and North Carolina ($4.86 – $13.64).

In addition to his role as policy counsel, Cleland also happens to be co-chair of the Telecommunications and Information Technology Task Force of the American Legislative Exchange Council (ALEC). Members of that committee include Comcast and AT&T — Tennessee’s largest telecom companies, both competing with municipal telecommunications providers like EPB.

¹ Analysis of Pole Attachment Rate Issues in Tennessee, State of Tennessee. 2007. p.23

² Analysis of Pole Attachment Rate Issues in Tennessee, State of Tennessee. 2007. p.12

Chattanooga’s Gigabit Fiber Generates $400 Million in Local Investment, 6,000 New Jobs

Chattanooga’s gigabit fiber network demonstrates local government works. The fiber to the home network has already brought $400 million in investment dollars and more than 6,000 new jobs to the area. At the same time, both Comcast and AT&T are working to lobby state legislatures to ban these kinds of public networks from ever getting off the ground. CBS News profiles EPB Fiber. (6 minutes)

Comcast, AT&T Announce Rate Hikes for Chattanooga; Publicly Owned EPB Has Not

Phillip Dampier January 3, 2013 AT&T, Broadband Speed, Comcast/Xfinity, Competition, Consumer News, Editorial & Site News, EPB Fiber Comments Off on Comcast, AT&T Announce Rate Hikes for Chattanooga; Publicly Owned EPB Has Not
Image: schvdenfreude

Image: schvdenfreude

Chattanooga Comcast and AT&T U-verse customers will need to open their wallets a bit more in 2013 as both the cable and phone company have announced new rate hikes that are now taking effect. But not everyone will pay more. Customers of EPB Fiber, which offers up to 1,000/1,000Mbps broadband and is a service of the publicly-owned electric utility is keeping prices stable until further notice.

Comcast customers face new increases averaging 4% in 2013 — $5 a month for Triple Play customers, several dollars more for broadband, and around $1 for basic cable service. Customers on promotions are unaffected until the temporary pricing expires.

AT&T U-verse customers will see price increases as much as $9 a month for television and broadband service.

Chattanoogans who ditched both private providers for the public option are sitting pretty with absolutely no rate increases to pay at this time. Although negotiations with programmers are ongoing, and costs are rising, EPB says it won’t raise any rates unless it becomes absolutely necessary. The utility takes rate increases very seriously, bringing them directly to its board of directors for approval.

Comcast and AT&T said the introduction of new services and increased programming costs contributed to their need to increase rates. Comcast says it has kept rates for its Xfinity service stable since 2010, a claim that doesn’t explain away its 4% rate hike in January 2012. AT&T said its supplier and labor costs also contributed to price increases, which also includes a broadband television surcharge.

If this seems like déjà vu, it could be because both AT&T and Comcast raised rates exactly one year ago this month. AT&T was the worst offender last year, boosting TV prices between $2-5 a month, equipment fees by $4-7 a month for broadband, and a $3 rate hike for its unlimited calling landline service. In comparison, EPB said it had no immediate plans to raise TV, broadband, or phone prices last year either.

epb_fiber_optics

EPB Fiber is the only Chattanooga telecom provider not raising its prices.

Customers facing rate increases can find an easy way to avoid them: threaten to take your business somewhere else. Retention agents are on the lookout for customers considering moving to another provider, and will usually slash rates to keep your business. Don’t want to argue your way to a lower rate or just want to say goodbye to Comcast and AT&T? Stop the Cap! highly recommends EPB Fiber, the most technologically advanced option in Tennessee, priced fairly with a proven track record of reliability.

A lot of Chattanooga area residents have already considered their options:

“Comcast is complete garbage,” writes one former customer. “Horrible product, even worse customer service. My Internet went out daily. I switched to EPB as fast as I could and have never been happier. I wouldn’t have Comcast again if it was free for the rest of my life.”

Another former cable customer reminds Comcast competition makes all the difference. He switched to EPB as well:

“Keep your Xfinity Comcast, you treated me like dirt when there was no other choice for cable. Now that I have that choice, I’ll never consider you again.”

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