A Michigan man last week opened his front door only to find AT&T’s efforts to install U-verse for a neighbor tore up his front yard and he isn’t even a customer.

Broadband Reports‘ AT&T forum member “riekl” in Macomb discovered AT&T’s service “upgrade” for the neighbors left him with a front yard “downgrade” consisting of a long strip of dead grass, a potentially undermined driveway, and no idea who will pay to repair the damage.

“The only utility easement is a 20 foot strip in my back yard,” he wrote.

AT&T decided running cables well inside the Macomb man’s front yard and beneath his driveway was fine. So was leaving without bothering to repair the damage.

An AT&T ‘Right of Way’ manager was eventually dispatched to the property and quickly conceded AT&T buried its lines well outside of the utility easement. The company is now making arrangements to repair the resident’s lawn.

“He also apologized as their techs are told to always notify the homeowner when crossing property,” said the irked resident.

But the story may not be over. AT&T’s cable is now a permanent feature beneath the non-customer’s front yard, which could create some issues if AT&T assumes it now has an ‘effective’ easement and will be free to repair or replace the cable in the same area at their discretion.

AT&T has a long history of using contractors that do not always favor the correct solution over an expedient one.

But at least they buried the cable this time.

Last fall, a Texas resident arrived home to find AT&T had installed a new line for one of their customers by stringing it across the top of the neighbor’s back lawn, where it remained untouched and unburied for an extended period.

Rogers Communications customers frustrated with customer service or billing problems are advised the first representative they speak with regarding the issue does not necessarily have the final word on the matter. Eastern Canada’s biggest cable operator reminds customers 91 percent of all complaints are resolved to the customer’s satisfaction by the time they appeal to Rogers’ Ombudsman.

“We’re the only telecommunications provider in North America to have an Ombudsman to provide an independent review of unresolved customer concerns,” noted Rogers’ blog.

Rogers recommends the following four-step process to resolve complaints:

• Step 1: Contact Rogers’ Customer Care Center – available by live chat, phone, regular mail, or through social media: on Twitter – @RogersHelps, @RogersVousAide or you can find Rogers on Facebook;
• Step 2: Request to speak with a manager at the Customer Care Center;
• Step 3: Contact the Office of the President;
• Step 4: Write to the Office of the Ombudsman, either by mail, fax or email.

Walker

Kim Walker, Rogers’ Ombudsman reported that 84 percent of customer complaints reported to her office were either entirely or partly Rogers’ fault. The Ombudsman’s office only found entirely in favor of Rogers or its prepaid unit Fido 16 percent of the time.

Over half of the complaints escalated to the Ombudsman’s office related to wireless service. Billing and service changes constituted the majority of those complaints.

If Rogers’ Ombudsman is still unable to offer customer satisfaction, customers have one more place to appeal: the Commissioner for Complaints for Telecommunications Services.

Customers can file complaints with the Commissioner on the CCTS website or by calling toll-free 1-888-221-1687.

For the third time, legal action from the four largest commercial television networks to shut online streaming service Aereo has been denied.

In a 10-2 decision, with one recusal, the 2nd Circuit Court of Appeals denied an attempt to re-hear the case by the full appellate court.

Following disposition of this appeal on April 1, 2013, Plaintiffs-Appellants filed petitions for rehearing in banc. An active judge of the Court requested a poll on whether to rehear the cases in banc. A poll having been conducted and there being no majority favoring in banc review, rehearing in banc is hereby denied.

Circuit Judge Denny Chin strongly dissented from the majority’s decision, joined by Circuit Judge Richard C. Wesley. Chin firmly took the side of the broadcasters, fearing if Aereo was permitted to continue operating, it could quickly mean the end of free over-the-air television. He believes the service exists only because of a precarious loophole:

“The majority’s decision elevates form over substance. It holds that a commercial enterprise that sells subscriptions to paying strangers for a broadcast television retransmission service is not performing those works publicly. It reaches that conclusion by accepting Aereo’s argument that its system of thousands of tiny antennas and unique copies somehow renders these transmissions “private.” In my view, however, the system is a sham, as it was designed solely to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law….”

Just about every over-the-air network and major station in the New York City area is opposed to Aereo. Among those filing suit against its continued operation:

• Networks: ABC, CBS, NBC, FOX, PBS, Univision, and Telemundo
• Stations: WNET, WPIX, WNJU

[flv width=”640″ height=”380″]http://www.phillipdampier.com/video/Bloomberg IACs Diller Says Aereo Is Not a Threat to Anyone 7-10-13.flv[/flv]

Barry Diller, the force behind Aereo, tells Bloomberg News he expected to get sued when he provided viewers with an alternate way to watch television. Diller says networks and stations are simply uncomfortable with change and that Aereo poses no threat to them. (3 minutes)

[flv width=”640″ height=”380″]http://www.phillipdampier.com/video/Bloomberg Aereo Not a Blip on Broadcasters Radar 6-27-13.flv[/flv]

Bloomberg Industries director of North American research Paul Sweeney looks at Aereo’s impact on television broadcasters and how it could eventually threaten their revenue streams. He speaks on Bloomberg Television’s “In The Loop.” (2 minutes)

Time Warner Cable will get up to $4 million in tax breaks courtesy of New York taxpayers to create a new call center in Buffalo’s now defunct Sheehan Hospital.

Time Warner Cable donated $175,000 to the New York Democratic State Committee that aired a series of pro-Gov. Andrew Cuomo ads, including one touting the governor’s efforts to get corporate money out of politics.

The cable company donated the funds to the Committee’s “housekeeping” account, exempt from New York’s campaign finance laws which ordinarily limit the maximum amount a corporation can contribute to $5,000. The New York Democrats spent nearly $5.3 million to air the advertising on stations across the state this spring.

Asked how Cuomo could justify promoting campaign finance reform while exploiting various loopholes to accept unlimited corporate contributions, Cuomo told the Albany Times-Union, “It’s not a loophole — it’s the law.”

“You can only live within the system that exists,” Cuomo added. “As soon as the campaign finance system is changed — and I’ve worked very hard to change it, I’ll continue to work very hard to change it — no one will be more pleased than myself.”

[flv width=”640″ height=”380”]http://www.phillipdampier.com/video/NY Dems Clean Up Albany Ad 5-8-13.flv[/flv]

Time Warner Cable, CBS, a giant teacher’s union and other large corporations helped pay to run this ad featuring New York Gov. Andrew Cuomo promising to cut the influence of money in politics. (1 minute)

Time Warner Cable was hardly alone. Other major donors were rooted out by the newspaper’s Capitol Confidential:

• — $250,000 came from “Educators United,” an offshoot of the United Federation of Teachers.
• — $200,000 arrived from the Hospitals Insurance Corporation.
• — $750,000 from George Soros. His son, Jonathan, has been a vocal proponent of establishing a system of public campaign finance.
• — Lucy Waletzky and Larry Rockefeller, children of Laurance Rockefeller and niece and nephew to Gov. Nelson A. and uber-banker David, each gave $25,000.
• — Hedge funder James Simons, the founder of Renaissance Technologies, gave $1,000,000.
• — $102,000 from “New Yorkers for Affordable Housing,” whatever the hell that is, an entity that shares an address with The Arker Companies’ Queens headquarters.
• — $50,000 from SONY Pictures Entertainment, $25,000 from Paramount Pictures and $50,000 from CBS.
• — $350,000 from Brookfield Properties, $200,000 from Tishman-Speyer and $100,000 from The Related Companies, all major New York City real estate firms.
• — $150,000 from billionaire fertilizer tycoon Alexander Rovt.
• — $200,000 from Leonard Litwin. Oh wait, I’m sorry: mega-donor Leonard Litwin’s name doesn’t appear in the filing. As is his wont, Litwin funneled his donations through various property-based LLCs he controls. New York’s glorious campaign finance laws treat an LLC like an individual.

Virtually all the donors have some business or regulatory dealings with the state government.

Last month, the governor’s office announced Time Warner Cable was being given taxpayer assistance to take over office space in the former Sheehan Hospital in Buffalo.

[flv width=”640″ height=”380″]http://www.phillipdampier.com/video/WGRZ Buffalo Erie County IDA Approves Tax Breaks For Time Warner Cable 7-15-13.flv[/flv]

This week, the Erie County Industrial Agency approved $757,000 in additional tax abatements for Time Warner Cable. That does not include the $3.1 million in state and local tax breaks already granted the cable company in return for job creation at a new call center being opened in Buffalo. WGRZ-TV reports. (1 minute)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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