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FCC Surrenders on Municipal Broadband; Won’t Appeal Pre-Emption Loss to Supreme Court

Slow-Road-Sign-378pxCommunity broadband advocates will have to redouble their efforts to overturn state laws that restrict or prohibit municipal broadband, because the Federal Communications Commission today signaled it will no longer be a part of that fight.

The federal regulator chaired by Thomas Wheeler sought to preempt state laws that restrict or ban publicly owned broadband networks, but municipal broadband opponents challenged the FCC in court and won in the U.S. Court of Appeals for the Sixth Circuit. The judges found the FCC had exceeded its authority.

“The FCC will not seek further review of the Sixth Circuit’s decision on municipal broadband after determining that doing so would not be the best use of Commission resources,” agency spokesperson Mark Wigfield told Motherboard.

In short, the FCC will let stand that court’s decision overturning the FCC’s preemption of state laws that restrict or prohibit municipal broadband, handing a major victory to Comcast, AT&T, Verizon, and Time Warner Cable (now Charter).

“Sometimes you’ve got to know when to fold ‘em,” Harold Feld, senior vice president of Public Knowledge, told Motherboard. “This case was always something of a long-shot, but now it’s too much of a long-shot to put money on.”

The decision not to appeal will require broadband advocates to battle in each impacted state to overturn the restrictive laws, which could be a long and arduous process. The alternative is voting in a majority of Democrats to the U.S. House and Senate. Democratic Sen. Cory Booker (NJ) introduced the “Community Broadband Act” — legislation to end anti-broadband state laws. Critics of the laws contend they are often written and lobbied for by incumbent telecom companies that don’t want competition. But the legislation has no chance of passage as long as Republicans maintain their House and Senate majority.

Federal Court Dismisses AT&T Throttling Lawsuit; AT&T Skates on a Loophole

Signage for an AT&T store is seen in New York October 29, 2014. AT&T Inc has made a bid for Yahoo Inc's internet business, Bloomberg reported on Wednesday, citing people familiar with the matter. REUTERS/Shannon Stapleton/File Photo

Signage for an AT&T store is seen in New York October 29, 2014. REUTERS/Shannon Stapleton/File Photo

WASHINGTON (Reuters) – A federal appeals court in California on Monday dismissed a U.S. government lawsuit that accused AT&T Inc  of deception for reducing internet speeds for customers with unlimited mobile data plans once their use exceeded certain levels.

The company, however, could still face a fine from the Federal Communications Commission regarding the slowdowns, also called “data throttling.”

The U.S. Court of Appeals for the Ninth Circuit said it ordered a lower court to dismiss the data-throttling lawsuit, which was filed in 2014 by the Federal Trade Commission.

The FTC sued AT&T on the grounds that the No. 2 U.S. wireless carrier failed to inform consumers it would slow the speeds of heavy data users on unlimited plans. In some cases, data speeds were slowed by nearly 90 percent, the lawsuit said.

The FTC said the practice was deceptive and, as a result, barred under the Federal Trade Commission Act. AT&T argued that there was an exception for common carriers, and the appeals court agreed:

The panel reversed the district court’s denial of AT&T Mobility LLC’s motion to dismiss, and remanded for an entry of an order of dismissal in an action brought by the Federal Trade Commission under section 5 of the FTC Act that took issue with the adequacy of AT&T’s disclosures regarding its data throttling plan, under which AT&T intentionally reduced the data speed of its customers with unlimited mobile data plans.

Section 5 of the FTC Act contains an exemption for “common carriers subject to the Acts to regulate commerce.” 15 U.S.C. § 45(a)(2). The panel held that AT&T was excluded from the coverage of section 5 of the FTC Act, and FTC’s claims could not be maintained. Specifically, the panel held that, based on the language and structure of the FTC Act, the common carrier exception was a status-based exemption and that AT&T, as a common carrier, was not covered by section 5.

Asked about the appeals court ruling, a spokesman for AT&T said: “We’re pleased with the decision.”

An FTC spokesman said the agency has not yet decided whether to appeal. “We are disappointed with the ruling and are considering our options for moving forward,” FTC spokesman Jay Mayfield wrote in an emailed comment.

The company, however, could face action from the FCC. In June 2015, the agency proposed a fine of $100 million for AT&T’s alleged failure to inform customers with unlimited data plans about the speed reductions. AT&T has contested that proposed fine.

(By Diane Bartz; Editing by Paul Simao and Matthew Lewis; Additional reporting by Stop the Cap!)

AT&T’s Cash Storm for House Speaker Paul Ryan’s 2017 Telecom Deregulation Agenda

Phillip Dampier August 18, 2016 Issues 3 Comments

fat cat attAT&T has gone over the top donating at least $70,000 to back Republican House Speaker Paul Ryan, more than the company has ever donated to anyone else.

It isn’t by coincidence.

According to Communications Daily (subscription req’d), one of Ryan’s top priorities for 2017 is a possible complete rewrite of the Telecommunications Act — the nation’s most important federal law governing telecommunications regulation and the operations of the Federal Communications Commission. Ryan and many of his fellow Republicans have been critical of the FCC’s growing interest in consumer protection and industry oversight.

Ryan’s efforts to push for further deregulation and policies that could lead to further industry consolidation could generate a windfall in the billions for AT&T. Past revisions of the Act have radically transformed the telecom landscape in the United States. President Bill Clinton’s signature on the 1996 Telecommunications Act opened the door to a tsunami of cross-media ownership and radio/TV station consolidation. Provisions in the ’96 Act were promoted as bolstering competition, but critics argued consolidation was favored over competition.

Howard Zinn summarized the effects of the ’96 law in his book A People’s History of the United States: “[it] enabled the handful of corporations dominating the airwaves to expand their power further. Mergers enabled tighter control of information.” Adding to the criticism, Latin American writer Eduardo Galeano echoed: “Never have so many been held incommunicado by so few.”

In 2000 Consumers Union blasted the ’96 Act as legislative bait and switch.

Ryan

Ryan

“It is evident that the Telecommunications Act of 1996 has failed to produce the consumer benefits policy makers promised because competition has failed to take hold across the communications industry,” the group said. “The fundamental problem is that the huge companies that dominate the telephone and cable TV industries prefer mergers and acquisitions to competition.”

AT&T is reportedly interested in access to lawmakers to lobby for telecom reforms that will allow it to switch off its legacy copper wire phone network in rural America, force certain consumers to wireless-only landline service, get rid of Net Neutrality, allow more wireless industry consolidation, ban municipal broadband, have a louder voice on privacy and cybersecurity regulation, access to wireless spectrum, and preferably a de-fanged FCC.

Public Citizen government affairs lobbyist Craig Holman told Communications Daily AT&T’s contributions are a “fundamental way of gaining access and influence to policymakers,” as part of Washington’s “pay-to-play system.”

The only entity giving Ryan more money than AT&T was the deregulation-obsessed Koch Industries, which gave $75,000.

Ryan’s current chief of staff is a close friend to Big Telecom. David Hoppe lobbied for AT&T, USTelecom and Verizon before being hired by Ryan. Hoppe’s influence appears to be significant after Ryan introduced “A Better Way,” the GOP’s platform for what they will do if they keep control of Congress and win the White House. The plan makes it clear there is unhappiness with the FCC under the leadership of chairman Thomas Wheeler, opposition to Title II reclassification of broadband — a change that opened the door to enforcing Net Neutrality, and a belief the FCC lacks transparency and is living in the regulatory past.

Holman worries that lobbyist spending in Washington, already a problem, has become insane after Citizens United eliminated limits on campaign contributions.

“The lids have been blown off… it’s breathtaking,” Holman told the newsletter.

Meet North Carolina’s Sen. Thom Tillis (R-ALEC/Time Warner Cable)

Tillis was honored in 2011 as ALEC's "Legislator of the Year" and received an undisclosed cash reward.

Tillis was honored in 2011 as ALEC’s “Legislator of the Year” and received an undisclosed cash reward.

Back when we first became aware of Republican member of the North Carolina legislature Thom Tillis around 2010, he was hard at work building his political future just as Republicans were poised to take control of the state legislature for the first time since the days of Reconstruction. Despite running unopposed in 2010, Tillis raised more money from cable and phone companies than any other lawmaker in the state, depositing $37,000 before knowing he would be the next Speaker of the North Carolina House of Representatives in January 2011. To celebrate, AT&T, Time Warner Cable, and Verizon each gave Tillis $1,000 just a few weeks before the swearing-in ceremony. It was money well spent, if you were a cable or phone company doing business in North Carolina.

Tillis left the legislature in 2015 to become the junior U.S. Senator from North Carolina. The telecom industry made sure to keep the campaign contributions flowing, if only to give their thanks for Tillis’ unwavering support for their agenda. Tillis doesn’t care much for his rural constituents still waiting for something better than dial-up internet access and as long as his campaign coffers remain bulging with corporate contributions, he doesn’t think he has much to fear from the state’s voters either. After all, he survived accusations from a resigning House Finance chairman that he had a secret business relationship with Time Warner Cable.

Raleigh’s The News & Observer felt it was their duty to mention Tillis in their editorial pages anyway, taking him to task for “cheering a loss for North Carolina consumers last week after a federal appeals court upheld a cable company protection law that he supported as state House speaker in 2011.”

The newspaper is talking about North Carolina’s infamous anti-public broadband bill that was literally constructed by lobbyists working for Time Warner Cable. The law effectively made it impossible for community broadband providers to bring their much-needed service to adjacent communities that have waited more than a decade for companies like Time Warner Cable, AT&T, CenturyLink and others to offer internet access in rural and underserved parts of the state.

Tillis personally helped shepherd the corporate protection bill, designed to shield incumbent cable and phone companies from community competition, through the state legislature, supporting it every step of the way. It would become law in 2011 and rural broadband in North Carolina hasn’t gotten any better since. In fact, it’s almost stagnant. But Tillis cannot say the same thing about his campaign bank accounts, which continue to bulge with corporate donations now in excess of $11 million.

An effort by the Federal Communications Commission to pre-empt the state law failed in a federal appeals court, much to the delight of Thom Tillis, something the newspaper calls an “insult” to North Carolinians looking for a better deal.

“Today’s ruling affirms the fact that unelected bureaucrats at the FCC completely overstepped their authority by attempting to deny states like North Carolina from setting their own laws to protect hard-working taxpayers and maintain the fairness of the free market,” Tillis said in a statement. Cough, cough.

The newspaper’s response:

Translation: Time Warner and other companies, thank goodness, will retain control of the market without having to worry about towns competing with them and thus will be able to charge people whatever the market will bear.

For Tillis to say the court ruling, which should be appealed, is a triumph for taxpayers is preposterous. It’s a setback. The “free market” he backs is one free of competition from municipal broadband services that offer a better product at a lower price.

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.”

The N.Y. Times Exposes Corporate-Backed Think Tanks

Sock Puppets: Ostensibly "independent" people quietly on the payroll of Big Telecom companies and advocating their positions.

Sock Puppets: Ostensibly “independent” people quietly on the payroll of Big Telecom companies and advocating their positions.

“Net Neutrality would not improve consumer welfare or protect the public interest,” came the considered view of one Jeffrey A. Eisenach, testifying before the Senate Judiciary Committee in September 2014. “The potential costs of Net Neutrality regulation are both sweeping and severe. It is best understood as an effort by one set of private interests to enrich itself by using the power of the state.”

Mr. Eisenach was introduced on the printed formal agenda as a “visiting scholar at the American Enterprise Institute.” If one looked at a transcript of his written testimony, they would find he also co-served as “co-chair of NERA Economic Consulting’s Communications, Media and Internet Practice.” But his views could have effectively represented all the above and more.

The New York Times this week published a two-part article examining the thin lines between public policy scholars, lobbyists, researchers, advocates, corporations, and private citizens. It is an important piece that details the shady world of bought and paid for research, academia, corporate lawyers and lobbyists, and Washington lawmakers that too often accept what they are told without following the money.

On that September day back in 2014 Eisenach wanted his views to be attributed only to him.

Eisenach

Eisenach

“While I am here in my capacity as a visiting scholar at the American Enterprise Institute, the views I express are my own, should not be attributed to A.E.I. or to any of the organizations with which I am affiliated,” Eisenach told the Senate committee.

What was considerably less clear is the name of the client (or an affiliated trade organization) that has underwritten almost every one of a dozen studies he has published on internet-related issues from 2007-2016 — Verizon, the same company that shares his hostile views towards Net Neutrality.

Over the years, it has become difficult to tell whether Eisenach’s views, articles, and study findings are his own, those of his study sponsor, and/or those of his employer. Just tracking Eisenach’s ever-changing employment record was no easy task. In the fall of 2013, Eisenach was the director of the American Enterprise Institute’s new “Center on Media and Internet Policy.” Just a few months later, he joined NERA, one of the country’s oldest economic consultancy firms, as a senior vice president in its telecommunications practice.

From each of these positions, Eisenach can pen the views of some of America’s largest telecommunications companies under the guise of an “independent” study, an invaluable cover tool for a member of Congress confronted with voting on behalf of corporate friends at the cost of consumers in the district.

“A report authored by an academic is going to have more credibility in the eyes of the regulator who is reading it,” Michael J. Copps, a former FCC commissioner who is now a special adviser for the Media and Democracy Reform Initiative at Common Cause, told the newspaper. “They are seeking to build credibility where none exists.”

A former Verizon employee who still does some consulting of his told the Times how the game is played.

aei“Let’s say you’re in legal and you want to have a paper that says what you want it to say,” said ex-Verizon economist Dennis Weller. “You could have a bunch of economists in house and ask them if they agree with you. How much easier would it be to go to an outside economist and say, ‘How about if I pay you $100,000 to write this?’”

With appropriate disclosure that a company like Verizon paid $100,000 for a report that exactly matches Verizon’s public policy agenda might raise questions on Capitol Hill as to its veracity and independence. If that disclosure goes missing or is hidden under a third-party like a trade association, a lawmaker might assume the report was produced independently and the strong corroboration of Verizon’s views is just a coincidence. That kind of credibility can be worth millions to any company confronting a debate over regulatory policy.

“[Eisenach] is good at linking big theoretical ideas to policy, and he’s been good at making money doing that,” added Weller. “He’s been good at moving from think tank to think tank and company to company, and I don’t think he’s ever lost money doing it.”

The New York Times investigation found while Eisenach testified before Congress ostensibly as a private citizen, he was also filing formal comments to the FCC as a “scholar” with the American Enterprise Institute, was meeting privately with FCC commissioners, organized public briefings that featured powerful senators like John Thune (R-S.D.), who happens to be the chairman of the Senate Commerce Committee. That committee also has direct oversight over the FCC and has spent the last three years scrutinizing FCC chairman Thomas Wheeler. Eisenach even briefed the two Republican FCC commissioners about what AEI’s general counsel had to say about Wheeler’s efforts to get Net Neutrality in place at the FCC. Eisenach offered both commissioners speaking time at AEI events, urging at least one of them to attack Net Neutrality.

“Net Neutrality is obviously top of mind,” he said in an email to that commissioner, Michael O’Rielly. “I’d be delighted if you would use the opportunity to lay out the case against.”

net_neutralityThe Times reported Eisenach was hardly alone opposing Net Neutrality. Just weeks after becoming chairman, Wheeler received a letter signed by more than a dozen prominent economists and scholars affiliated with various Washington think tanks or academic institutions. They wanted Wheeler to reject Net Neutrality regulations. The letter attempted to distance the signers from any corporate agenda, noting in a footnote that nobody was compensated for their signature on the letter.

On the other hand, of the dozen studies that were included or referenced in their letter as “evidence,” more than half were entirely funded by giant telecom companies that oppose Net Neutrality. Mr. Wheeler would need a magnifying glass and plenty of free time to ferret out the industry funding disclosures in those attached studies, which were buried in footnotes.

When the industry took the FCC to court over broadband regulation or Net Neutrality, it was more of the same. Verizon was successful opposing an earlier FCC rule on Net Neutrality by trotting out almost two dozen studies and declarations that opposed regulatory oversight — more than half sponsored entirely by the telecommunications companies or trade associations that despise Net Neutrality. Many other studies were written by think tanks and scholars that also had direct financial ties to the companies.

Litan

Litan

Another key factor in the debate about Net Neutrality was the cost of implementing it. Again, the incestuous ties between the telecom industry, think tanks, and academia would serve up the “right answers” for Big Telecom’s case against Neutrality when two economists issued a controversial “policy brief” that claimed Net Neutrality would cost $15 billion in new fees and retard broadband expansion and upgrades. (The $15 billion figure came under immediate ridicule by consumer groups that effectively suggested the study authors ‘made it up,’ a case that may have been proven to some degree when the authors suddenly revised it down to $11 billion.)

Robert Litan, then a senior fellow at Brookings and Hal Singer, who used to work at the Progressive Policy Institute, would quickly come under greater scrutiny than Eisenach, probably because their report became central to the industry’s battle against Net Neutrality. The National Cable and Telecommunications Association (NCTA) even built an advertising campaign against Net Neutrality around their study. Politicians opposed to Net Neutrality also regularly quoted from Litan and Singer’s findings to explain their strong opposition to the net policy.

Lost in the debate is who paid Mr. Litan and Mr. Singer for their work. Their employer, Economists Inc., yet another inside-the-Beltway consulting firm, didn’t exactly publicize their “select clients” included AT&T and Verizon — two of the largest opponents of Net Neutrality.

Using think tanks to bolster corporate lobbying has become so common, it has attracted the attention of some members of Congress.

Litan collided with one of the Senate’s fiercest consumer advocates and watchdogs — Sen. Elizabeth Warren (D-Mass.) in a September 2015 hearing about a rules change fiercely opposed by investment bankers that would require financial advisers recommending retirement-associated investments to put their clients’ interests ahead of their own personal gain. Warren has championed the cause of ending high bank and investment-related fees that eat away investor returns. Some of the worst offenders convinced financial advisers to recommend their funds by kicking back large bonus commissions, which enriched the adviser and the investment bank but left seniors hit hard by lost potential earnings.

Sen. Elizabeth Warren (D-Mass.)

Sen. Elizabeth Warren (D-Mass.)

Litan’s research questioned the potential benefits of upping ethical standards. He wrote the costs to the banking and investment community to implement the rules would far outweigh any benefits to investors. Litan casually mentioned his affiliation with Brookings, a think tank, to promote his research’s credibility. He didn’t call attention to the fact his 28-page study was produced for a client: Capital Group — a massive financial services company with $1.39 trillion in assets. It would be directly impacted by the imposition of the new rules, which it strongly opposed.

Capital Group paid Economists, Inc. $85,000 for the study. Litan’s cut of the action was $38,800 — or $1,386 per page.

Warren complained Litan was not exactly forthcoming in disclosing his personal gain and his ties to a major opponent of the new rules under consideration.

“These disclosures are problematic: they raise significant questions about the impartiality of the study and its conclusions, and about why a Brookings-affiliated expert is allowed to use that affiliation to lend credibility to work that is…editorially compromised,” Sen. Warren wrote in a letter to Brookings President Strobe Talbott.

The embarrassment to Brookings, which has increasingly relied on corporate-funded research to fund its work, led to rumors Litan was asked to leave, and he resigned shortly thereafter. Litan downplayed the event, calling it a “minor technical violation” of Brookings’ ethics policy, which prohibits those associated with the think tank from using their affiliation with Brookings in any research report or testimony.

The incident fueled consumer groups’ arguments that cozy arrangements between purportedly independent scholars and academics and corporate entities too often results in bought-and-paid-for- research not worth the paper it is printed on. A clear conflict of interest and the lack of prominent funding disclosures makes such reports suspect at best and worthless in many other cases, because no company paying for a report is going to make it public if it conflicts with their agenda.

Singer

Singer

Remarkably, other economists, many also engaged in producing reports for corporate clients, rushed to the defense of… Mr. Litan, calling his removal from Brookings the result of a witch hunt.

A letter signed by former Clinton economic advisers W. Bowman Cutter and Everett Ehrlich; Harvard University international trade and investment professor Robert Z. Lawrence; former Clinton chief budget economist Joseph Minarik; and former Clinton economic adviser Hal Singer, who co-authored the report that got Litan in hot water with Sen. Warren, claimed as a result of Litan’s forced resignation, critics of their reports could threaten the credibility of their work with an “ad hominem attack on any author who may be associated with an industry or interest whose views are contrary to [Sen. Warren].”

“Businesses sometimes finance policy research much as advocacy groups or other interests do,” the economists wrote. “A reader can question the source of the financing on all sides, but ultimately the quality of the work and the integrity of the author are paramount.”

Singer has since left the Progressive Policy Institute.

D.C.’s revolving door has also provided lucrative work for those out of government jobs and now working in the private sector, often lobbying those still in government.

Rep. Greg Walden (R-Ore.) had no problem introducing a Wall Street Journal op-ed piece into the Congressional Record written by Robert McDowell, who wears several hats at the Hudson Institute. He’s a “scholar,” a “telecommunications industry lawyer” at a firm retained by AT&T to fight Net Neutrality, and a lobbyist. If his name is familiar to you, that might be because McDowell used to be a commissioner of the Federal Communications Commission from June 1, 2006 to May 17, 2013. Now he is paid to kill Net Neutrality for AT&T.

None of that seem to faze Walden or raise questions about the credibility of the opinion piece he sought to have added to the official record.

“Everyone’s got their point of view,” Walden said last year. “And some of them get paid to have that point of view.”

AT&T Fined for Letting Drug Dealers/Money Launderers Run Sham Directory Assistance

Phillip Dampier August 8, 2016 AT&T, Consumer News, Public Policy & Gov't 3 Comments
phone fraud

…for AT&T’s complacency.

AT&T will pay $7.75 million to the Federal Communications Commission’s Enforcement Bureau and to its customers to settle a phone cramming investigation that revealed the phone company allowed drug dealers and money launderers to offer a scam paid directory assistance service for AT&T’s landline customers.

AT&T allowed the scammers to charge many of its landline customers $9 a month for a directory assistance service investigators called “a sham” from day one. AT&T collected a “billing fee” for each charge and collected another $1.50 in “complaint fees” each time a customer complained about the charge on their phone bill.

It took the U.S. Drug Enforcement Administration (DEA) to uncover the scam while investigating two Cleveland-area companies — Discount Directory, Inc. (DDI) and Enhanced Telecommunications Services (ETS) for drug-related crimes and money laundering the proceeds.

In the course of seizing drugs, cars, jewelry, gold, and computers (totaling close to $3.4 million) from the companies’ principals and associates, DEA investigators discovered financial documents related to a scheme to defraud telephone customers. The key participants in the scheme told DEA agents that the companies were set up to bill thousands of consumers (mostly small businesses) for a monthly directory assistance service on their local AT&T landline telephone bills. The DEA referred this investigation to the FCC’s Enforcement Bureau in 2015.

AT&T received a fee from the companies for each charge AT&T placed on its customers’ bills. Although DDI and ETS submitted charges for thousands of AT&T customers, they never provided any directory assistance service. Neither DDI, ETS, nor AT&T could show that any of AT&T’s customers agreed to be billed for the sham directory assistance service, but AT&T kept on billing and collecting money from customers anyway, despite their responsibility to ensure the services were legitimate.

“AT&T ignored a number of red flags that the charges were unauthorized, including thousands of charges submitted by the companies for nonexistent, disconnected, or otherwise ‘unbillable’ accounts,” the consent decree stated.

Under the terms of today’s settlement, AT&T will issue full refunds to all current and former consumers charged for the sham directory assistance service since January 2012. These refunds are expected to total $6,800,000. AT&T will also pay a $950,000 fine to the U.S. Treasury. The Enforcement Bureau has also secured strong consumer protections in the settlement that include requirements that AT&T cease billing for nearly all third-party products and services on its wireline bills, adopt processes to obtain express informed consent from customers prior to allowing third-party charges on their phone bills, revise their billing practices to ensure that third-party charges are clearly and conspicuously identified on bills so that customers can see what services they are paying for, and offer a free service for customers to block third-party charges.

Pre-Empting Moronic Broadband Law Means Everything to Rural North Carolina

greenlightThe community of Pinetops, N.C. has finally got 21st century gigabit broadband, but no thanks to a state legislature so beholden to Time Warner Cable, it let the cable giant write its own law to keep potential competitors away.

The passage of H129 was almost a given after Republicans regained control of both chambers of the state legislature in 2011 for the first time since 1870. The bill made it almost impossible for any of the state’s existing community-owned broadband networks to expand out of their immediate service areas. It also discouraged any other rural towns from even considering starting a public broadband network to solve pervasive broadband problems in their communities.

It was not the finest moment for many of H.129’s supporters, who had to explain to the media and constituents why the state’s largest cable operator needed protection from potential competition and more importantly, why public officials were catering to the corporate giant’s interests over that of the public.

"I wish you'd turn the camera off now because I am going to get up and leave if you don't," said Rep. Julia Howard

“I wish you’d turn the camera off now because I am going to get up and leave if you don’t,” said Rep. Julia Howard

Rep. Julia Howard (R-Davie, Iredell) found herself losing her cool when WNCN reporters in Raleigh caught up with her and confronted her with the fact her campaign coffers had been filled by the state’s largest telecom companies. She didn’t have an answer for that. Moments later, she appeared ready to flee the interview.

“I wish you’d turn the camera off now because I am going to get up and leave if you don’t,” Howard told the reporter.

Rep. Marilyn Avila was so close to Marc Trathen, then Time Warner Cable’s top-lobbyist in the state, we decided five years ago it would be more accurate to list Time Warner Cable as her sole constituent. Avila’s name appeared on the bill, but it was readily apparent Time Warner Cable drafted most of its provisions. The nearest city in Avila’s own district wanted no part of H129, and neither did many of her constituents.

The bill managed to pass the legislature and after becoming law effectively jammed up community broadband expansion in many parts of the state.

It would take the Federal Communications Commission to pre-empt the legislation on the grounds it was nakedly anti-competitive and prevented broadband improvements in communities major telecom companies have ignored for years.

As a result of the FCC’s actions, the community of Pinetops now has access to gigabit broadband, five years late, thanks in part to Rep. Avila who got a $290 dinner for her efforts and was honored as a guest speaker at a cable industry function in recognition of her service… to Time Warner Cable.

Rep. Avila with Marc Trathen, Time Warner Cable's top lobbyist (right) Photo by: Bob Sepe of Action Audits

Rep. Avila with Marc Trathen, Time Warner Cable’s top lobbyist (right) Photo by: Bob Sepe of Action Audits

Greenlight, Wilson’s community-owned fiber to the home provider, switched on service in the community this spring to any of the 600 Pinetops homes that wanted it, and many did.

“We just love it!” said Brenda Harrell, the former acting town manager.

In fact, Greenlight is now delivering the best broadband in Edgecombe County, and deploying fiber to the home service was hardly a stretch for Greenlight, which was already installing fiber optics to manage an automated meter infrastructure project. The only thing keeping better broadband out of the hands of Pinetops residents was a law written by an industry that loathes competition and will stop it at all costs. Time Warner Cable didn’t bother to offer service in the community even after its bill became law and residents endured years of unreliable DSL or dialup access instead. Talk about a win-lose scenario. Time Warner Cable got to keep its comfortable cable monopoly while many families had to drive their children to businesses miles away just to borrow their Wi-Fi signal to finish homework assignments.

Faster broadband is likely to be transformative for the quiet rural community. Current town manager Lorenzo Carmon sees more than nearby fields of sweet potatoes and soybeans. With gigabit fiber and cheap local housing, Pinetops could become a bedroom community for upper income professionals now living in Greenville, a university town heavily populated by doctors, students, and high-tech knowledge economy workers. If and when they arrive, they’ll find a tech-ready community, right down to the local Piggly-Wiggly supermarket, which now has fiber fast internet service too.

pinetopsPinetops offers proof of the obscenity of bought-and-paid-for-politicians supporting corporate protectionism that harms people, harms education, harms jobs, and leaves rural communities with no clear path to the digital economy of the 21st century. Legislation like H129, which continues to be enforced in more than a few U.S. states, needs to be pre-empted nationwide or even better repealed by state legislators.

But North Carolina’s legislature still isn’t getting the message. They are outraged the FCC outsmarted Time Warner Cable and them, and are now wasting time and resources to have the FCC’s pre-emption overturned in court, evidently so that rural North Carolina can continue to tough it out with DSL indefinitely. That’s political malpractice and North Carolina voters need to show the door to any elected representative that cares more about the interests of a giant cable company than what is good for you and your community. Reps. Avila and Howard don’t have to live with 3Mbps DSL, so why should you?

“If the private sector is not providing the services, the government has to step in,” said Carmon. “The internet is just like electricity. You can’t live without it.”

We couldn’t agree more.

FCC’s Wheeler to Consumers: Contract Dispute TV Blackout? You’re On Your Own

Wheeler

Wheeler

The Federal Communications Commission has decided it won’t get too involved in the increasing number of contract renewal disputes between TV networks and cable TV providers, and has refused to issue new rules governing what represents “good faith negotiations” in disputes that take channels off the lineup.

“Based on the staff’s careful review of the record, it is clear that more rules in this area are not what we need at this point,” said FCC chairman Thomas Wheeler. “It is hard to get more inclusive than to review the ‘totality of circumstances.’  To start picking and choosing, in part, could limit future inquiries.”

A growing number of disputes over the rising cost of video programming frustrate pay-TV customers who find strident messages about nasty programmers or greedy providers blocking their favorite channels after contract renewal talks fail. Cable operators, sensitive about cord-cutting, want to keep price hikes down. Wall Street and shareholders expect growing revenue from charging providers for access to programming, which has become a major revenue source for most. Wheeler wrote Congress had good intentions to put a stop to contract disputes that eventually affected the public:

Congress, in Section 325 of the Communications Act, sought to reduce the likelihood that TV viewers would face this roadblock. The law requires broadcasters and multichannel video programming distributors (MVPDs) to negotiate for retransmission consent in good faith. Congress gave the Commission the authority to keep an eye on these negotiations, and our rules include a two-part framework to determine whether broadcasters and MVPDs are negotiating in good faith.

  • First, the Commission has established a list of nine objective standards, the violation of which is considered a per se breach of the good faith negotiation obligation.
  • Second, even if the specific standards are met, the Commission may consider whether, based on the totality of the circumstances, a party failed to negotiate retransmission consent in good faith.

In the recent STELA Reauthorization Act of 2014 (STELAR), Congress expressed concern about the harm consumers suffer when negotiations fail and sought-after broadcast programming is blacked out on their pay TV service. STELAR directed the Commission to initiate a rulemaking to consider possible revisions to our “totality of the circumstances” test.

Everyone has a different opinion of what represents “good faith” and many of these disputes quickly get acrimonious. Or worse. Take the one-month-and-counting little hatefest between Tribune Media and DISH Network also known as Satan’s Mother-in-Law v. the Zika virus. Tribune blacked out DISH customers’ access to 42 local channels in 33 markets, including WGN Chicago, WPIX New York and KTLA Los Angeles back in June. Many are major network-affiliated over the air stations. The dispute, as usual, is over money. Tribune wants DISH to bundle WGN America, a low-rated basic cable network, with its Tribune-owned stations, as a condition for renewal.

dish dispute

WGN America has little to do with WGN-TV, the over-the-air independent former superstation based in Chicago. As of late 2014, WGN America runs a vastly different schedule of syndicated sitcoms, drama series and feature films, and some first-run original television series produced exclusively for the channel. Long gone are local, syndicated, or sports shows that a viewer in Chicago would see watching channel 9 over-the-air. As a result, viewership of WGN America is 20% less than the former WGN-TV, and dropping. Many of the shows on WGN America also turn up on other cable channels, making the network a questionable addition to the lineup.

WGN America, not your father's Channel 9 from Chicago.

WGN America, not your father’s Channel 9 from Chicago.

DISH obviously has no interest in WGN America, but Tribune’s negotiators told them they better get interested, because WGN America will come along for the ride, part of any renewal for the over-the-air stations Tribune owns.

DISH is in no hurry to negotiate over the summer months, when shows are repeats and folks are on vacation. Many expect that will change once football season nears. But the battle continues anyway.

A new low was reached a few weeks ago when a frustrated Rev. Jesse Jackson claimed in an open letter that DISH’s refusal to negotiate was racist, in part because the blackout affected the show Underground, chronicling the Underground Railroad system that helped slaves escape to the northern free states.

“Is DISH using the same kind of math with ratings that the old south employed when enacting laws that counted African-Americans as three-fifths of a man?” wrote Jackson in a letter released by his Rainbow Push Coalition. “For far too long African-Americans have been underrepresented and unfavorably portrayed on television, silencing the significant contributions they have made to this country. Underground is a crucial part of a brand-new day of diversity on television that sheds a bright light on the bravery, ingenuity and power of the African-American experience, and is being used as teachable moments in homes and history classes around the nation at a time when we need it most.”.

Jackson

Jackson

DISH avoided taking the bait, responding, “We are skeptical that Rev. Jackson is truly interested in finding a fair deal for DISH customers.”

The FCC isn’t apparently interested in putting a line in the water either, steering clear of the controversy and allowing programmers and networks to continue to work things out with each other while customers watch repeating barker channels claiming none of this is the fault of their provider.

Wheeler points out he is aware of the DISH/Tribune dispute, but isn’t exactly rushing to end it.

“I summoned both parties to Washington to negotiate in coordination with Commission staff,” Wheeler wrote. “When that step failed to produce an agreement or an extension, the Media Bureau issued comprehensive information requests to both parties to enable FCC staff to determine whether they were meeting their duty to negotiate in good faith; we are reviewing their responses as I write. If that review reveals a dereliction of duty on the part of one or both parties, I will not hesitate to recommend appropriate Commission action.”

To DISH viewers, that represents a “definite maybe.”

At the end of last month DISH decided it wasn’t “good faith” when the Tribune subsidiary operating WGN America started running ads calling DISH a “dishgusting” company. Too much? Apparently so for DISH’s lawyers who filed a lawsuit.

“In a last-ditch bid to force DISH to accept its terms, DISH is informed and believes, and thereon alleges, that Tower created and broadcast, via its channels, disparaging content regarding DISH, its services and its performance,” states the complaint. “The campaign launched by Tower with these commercials cast DISH in an extremely negative light — Tower claims that DISH has not acted in good faith, that its performance and services are the worst in the industry, and even that DISH is a ‘disgusting’ company.”

Apparently, DISH maintains a disparagement clause in its old contract with Tribune, designed to stop nasty exchanges like this. Tribune called the lawsuit frivolous and the FCC today effectively called it a day.

Cable Industry Frets Over FCC’s “Artificial Competition” Requirement in Charter Merger

loophole_breakfast_of_lawyers_smallA condition imposed by the Federal Communications Commission requiring newly merged Charter-Time Warner Cable-Bright House to expand service into at least two million new homes already served by another cable or phone company already offering High Speed Internet is causing heartburn for smaller cable and phone companies that fear government-mandated competition in their service areas.

FCC chairman Thomas Wheeler has long believed that cable operators could compete against one another for customers, driving down prices for consumers while forcing service improvements. One of the conditions approving the Charter deal could have put Wheeler’s theory to the test, but not if Charter can help it.

Charter CEO Thomas Rutledge implied that he will continue to shield fellow cable operators from unwanted competition.

“When I talked to the FCC, I said I can’t overbuild another cable company, because then I could never buy it, because you always block those,” Rutledge said at last month’s MoffettNathanson Media & Communications Summit. “It’s really about overbuilding telephone companies.”

It seems unlikely Charter will ever directly overbuild one of its friends in the cable industry, especially important ones like Comcast, Cox, and Cablevision. Smaller independent cable companies don’t feel as secure, which is why the trade group that represents many of them, the American Cable Association, has tried to get the FCC to back off.

charter twc bh“The overbuild condition imposed by the FCC on Charter is stunningly bad and inexplicable government policy,” ACA president Matthew Polka said in a statement. “On the one hand, the FCC found that Charter will be too big and therefore it imposed a series of conditions to ensure it does not exercise any additional market power. At the same time, the FCC, out of the blue, is forcing Charter to get even bigger.”

The FCC probably crafted the deal conditions to force Charter to compete with other cable operators, because one million of those new customer locations must be where at least 25Mbps broadband service is already available. That protects many phone companies still offering DSL as an afterthought, because most don’t offer speeds anywhere close to 25Mbps. But the FCC left several counter-intuitive loopholes in the language that Republican FCC commissioner Ajit Pai says lends credibility to the ACA’s argument.

“Unless Charter chooses to exclusively overbuild areas served by Comcast, which I find highly unlikely, Charter’s increased broadband market share will come at the expense of smaller competitors,” Pai wrote in comments about the proposal.

unitelNotably, Charter is allowed to buy up other small telecom companies and count up to 250,000 of their customers towards the one million new homes served requirement. If those are small rural cable companies, that means the FCC is allowing Charter to grow even larger instead of providing more competition. Charter could also choose to overbuild municipal broadband providers and co-ops, especially in areas next to existing Charter/TWC/Bright House systems. That would harm the FCC’s current interest in removing roadblocks to publicly owned broadband networks. Enthusiasm for such networks could be dampened if Charter is willing to wire the area at their own expense.

Rutledge’s announcement is sure to make life uncomfortable for a number of rural phone companies that have invested in fiber network upgrades and now face the potential of Charter taking away customers that are helping to pay off those upgrades.

An unintended consequence of the FCC’s various loopholes could place a heavy burden on independent telephone companies that invested in network upgrades for faster broadband even as wealthier and larger phone companies are protected from that competition by delivering frustratingly slow DSL.

One potential target for a Charter overbuild could be UniTel, headquartered in Unity, Maine. UniTel offers residential customers in Albion, Dixmont, Newburgh, Thorndike, Troy, and Unity broadband speeds up to 1 gigabit. Unity is located between Bangor and Portland — both served by Time Warner Cable (now Charter).

Phone companies like UniTel call the FCC’s mandate “artificial competition” that could put it and other rural independent phone companies into financial distress. UniTel has a speed edge over anything Charter plans to offer customers in the immediate future as it deploys fiber to the home service, but television is another matter. One of the benefits of being a large cable company is volume-discounted pricing for cable television networks. Smaller independent operators cannot compete when wholesale television programming discounts are calculated in, allowing larger companies to undercut smaller ones with lower pricing.

UniTel officials criticized the FCC for creating deal conditions that Charter will exploit to the detriment of improving rural broadband service.

“Rather than allow New Charter to unilaterally narrow the scope of the buildout condition to meet its own business objectives, UniTel respectfully urges that the Commission should act to narrow the scope of any buildout condition, not to meet the private business objectives of New Charter, but rather to meet the public policy objectives of universal service in rural areas,” the company argued in its filing with the FCC.

A handful of rural telecom associations generally agree with UniTel and want the FCC to retarget Charter’s buildout requirements to fixing the rural broadband problem by expanding into unserved service areas instead.

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