The Wall Street Journal believes the majority of Americans are paying for internet speed they never use or need, but their investigation largely ignores the question of traffic bottlenecks and data caps that require many customers to upgrade to premium tiers to avoid punitive overlimit fees.

The newspaper’s examination was an attempt to test the marketing messages of large cable and phone companies that claim premium speeds of 250, 500, or 1,000 Mbps will enhance video streaming. A total of 53 journalists across the country performed video streaming tests over a period of months, working with researchers at Princeton University and the University of Chicago to determine how much of their available bandwidth was used while streaming videos from Netflix, Amazon Prime Video, YouTube and other popular streaming services.

Unsurprisingly, the newspaper found most only need a fraction of their available internet speed — often less than 10 Mbps — to watch high quality HD streaming video, even with up to seven video streams running concurrently. That is because video streaming services are designed to produce good results even with lower speed connections. Video resolution and buffering are dynamically adjusted by the streaming video player depending on the quality of one’s internet connection, with good results likely for anyone with a basic broadband connection of 10-25 Mbps. As 4K streams become more common, customers will probably get better performance with faster tiers, assuming the customer has an unshaped connection that does not throttle video streaming speeds as many mobile connections do and the streaming service offers a subscription tier offering 4K video. Netflix, for example, charges more for 4K streams. Some other services do not offer this option at all.

Image: WSJ

WSJ:

For most modern televisions, the highest picture clarity is the “full” high-definition standard, 1080p, followed by the slightly lower HD standard, 720p, then “standard resolution,” 480p. The Journal study found a household’s percentage of 1080p viewing had little to do with the speed it was paying for. In some cases, streaming services intentionally transmit in lower resolution to accommodate a device such as a mobile phone.

When all HD viewing is considered—1080p and 720p—there were some benefits to paying for the very highest broadband tiers, those 250 Mbps and above.

Streaming services compress their streams in smart ways, so they don’t require much bandwidth. We took a closer look at specific services by gathering data on our households’ viewing over a period of months. Unlike the “stress test,” this was regular viewing of shows and movies, one at a time.

Netflix streamed at under 4 Mbps, on average, over the course of a show or movie, with not much difference in the experience of someone who was paying for a 15 Mbps connection and someone with a one gigabit (1,000 Mbps) connection. The findings were similar for the other services.

There is a brief speed spike when a stream begins. Netflix reached the highest max speeds of the services we tested, but even those were a fraction of the available bandwidth.

Users watching YouTube might launch a video slightly faster than those watching Netflix, and at lower resolution, but this is a function of how those services work, not your broadband speed, the researchers said.

Whereas Netflix tries to load “nice high quality video” when you press play and hence has higher spikes, YouTube appears to “want to start as fast as possible,” said Paul Schmitt, one of the researchers.

A spokeswoman for Alphabet Inc.’s YouTube said the service chooses playback quality based on factors including type of device, network speed, user preferences and the resolution of the originally uploaded video. A Netflix Inc. spokeswoman said the company aims to deliver quality video with the least possible bandwidth. Amazon.com Inc. had no comment.

The Journal finds little advantage for consumers subscribing to premium speed tiers, if they did so hoping for improved streaming video. The unanswered question is why customers believe they need faster internet speeds to get those improvements in the first place.

The answer often lies in the quality of the connection between the streaming provider and the customer. There are multiple potential bottlenecks that can make a YouTube video stutter and buffer on even the fastest internet connection. Large providers have had high profile disputes with large streaming companies over interconnection agreements that bring Netflix and YouTube traffic to those internet service providers’ customers. Some ISPs want compensation to handle the increasing amount of incoming video traffic and have intentionally not allowed adequate upgrades to keep up with growing subscriber demand. This creates a traffic bottleneck, usually most noticeable at night, when even a small YouTube video can get stuck buffering. Other streaming videos can suffer from repeated pauses or deteriorate into lower resolution video quality, regardless of the speed of your connection.

Another common bottleneck comes from oversold service providers that have too much traffic and not enough capacity to manage it. DSL and satellite internet customers often complain about dramatic slowdowns in performance during peak usage times in the evenings and on weekends. In many cases, too many customers in a neighborhood are sharing the connection back to the phone company. Satellite customers only have a finite amount of bandwidth to work with and once used, all speeds slow. Some other providers do not pay for a large enough pipeline to the internet backbone, making some traffic slow to a crawl when that connection is full.

Customers are sold on speed upgrades by providers that tell them faster speeds will accommodate more video traffic, which is true but not the whole answer. No amount of speed will overcome intentional traffic shaping, an inadequate connection to the video streaming service, or an oversold network. Too bad the Journal did not investigate these conditions, which are more common than many people think.

Finally, some customers feel compelled to upgrade to premium tiers because their provider enforces data caps, and premium tiers offer larger usage allowances. Cable One, Suddenlink, and Mediacom customers, among others, get a larger usage allowance upgrading. Other providers offer a fixed cap, often 1 TB, which does not go away unless a customer pays an additional monthly fee or bundles video service.

Data caps are a concern for video streaming customers because the amount of data that can be consumed in a month is substantial. As video quality improves, data consumption increases. The Journal article does not address data caps.

Finally, the Journal investigation confined itself to video streaming, but internet users are also increasingly using other high traffic services, especially cloud backup and downloading, especially for extremely large video game updates. The next generation of high bandwidth internet applications will only be developed if high speed internet service is pervasive, so having fast internet speed is not a bad thing. In fact, providers have learned it is relatively cheap to increase customer speeds and use that as a justification to raise broadband prices. Other providers, like Charter Spectrum, have dropped lower speed budget plans to sell customers 100 or 200 Mbps service, with a relatively inexpensive upgrade to 400 Mbps also gaining in popularity.

Does the average consumer need a premium speed tier for their home internet connection? Probably not. But they do need affordable unlimited internet service free of bottlenecks and artificial slowdowns, especially at the prices providers charge these days. That is an investigation the Journal should conduct next.

AT&T TV launched today in 10 U.S. cities — all within AT&T’s U-verse/fiber service areas, providing a comparable TV lineup to the DirecTV satellite service with discounts for bundling internet access.

Customers can begin signing up today for the service in Orange and Riverside, Calif., West Palm Peach, Fla., Topeka and Wichita, Kan., Springfield and St. Louis, Mo., and Corpus Christi, El Paso, and Odessa, Tex.

The service’s television lineup is closely comparable to the DirecTV satellite lineup, and AT&T intends its new streaming TV service to offer an alternative to those who do not want to install a satellite dish or deal with AT&T’s own U-verse TV. The biggest bundle discounts go to consumers who bundle internet and television service together. Video packages start at $59.99 and include a much larger lineup than AT&T’s streaming-only service targeting cord cutters — AT&T TV Now (formerly DirecTV Now).

These plans bundle television and internet from AT&T.

Customers bundling internet and TV service will find a deeply discounted 300 Mbps internet plan for $40 a month for the first year ($70 for gigabit service) and AT&T will include unlimited internet in any package bundling TV service (a $30/mo value). Installation fees are waived, but there is a $19.95 activation fee and an early termination fee of $15/mo for TV and $15/mo for internet for each month remaining on a two-year contract. AT&T TV requires a set-top box for each television and the first one is free. Each additional box is $120, payable up front or in 12 equal monthly installments of $10. The box is powered by Android TV and supports various apps and comes with a voice remote control.

Features include a 500-hour cloud DVR package, with recordings stored up to 90 days. You can record as many channels as you want at the same time, but we suspect premium movie channels may be excluded. The full lineup is available for streaming outside of your home and includes local major network affiliates in most markets. AT&T TV supports 4K streaming as well, and since AT&T is waiving its data cap for TV and broadband customers, you will not have to worry about any data caps. Up to three people can stream your TV lineup simultaneously. Keep in mind each television represents one stream.

AT&T makes life complicated for would-be customers with a panoply of confusing discounts, rebates, and savings that often expire after one year into a two-year contract. Customers should pay careful attention to the breakdown of the charges AT&T provides and mark your calendar so you are not surprised by the gradually rising bill.

Stop the Cap! put together a package to give you an idea of what to expect. We selected the “Ultimate” TV package, which includes just about every English language channel on the lineup. Mysteriously, the biggest exception is Hallmark Movies and Mysteries. Like AT&T TV Now, this channel is only available on the cheapest package, which makes no sense to us.

Let’s start with the TV package:

Note that the TV package is discounted significantly, but only for the first 12 months of your 24 month commitment. Also note the “Regional Sports Fee” which varies depending on the city. In this case, we chose Topeka, Kan. to build this package.

Premium movie channels are provided free for the first 90 days. The prices shown represent à la carte pricing. If you want these channels going forward, ask if a package price is available and bundle them for additional savings.

AT&T’s mini set-top box has been tested by DirecTV Now customers for almost a year. It earned mixed reviews and can be cumbersome. Keep in mind the first box is free, but each additional box costs $120, payable up front or in installments.

AT&T’s pricing for the first three months is very low, then higher prices kick in for the next 12 months unless you cancel those four premium movie channels, with still higher pricing during the second year of the two-year contract. AT&T makes things needlessly complicated and this explains the subscriber confusion about billing issues that is common with AT&T. But AT&T cannot be accused of not letting you know what to expect. In 2020, you could be paying $188.37 just for your TV lineup:

Next up is the internet portion of our order:

Note you get a $20 discount, but only during the first year. The fact you seem to owe nothing when placing the order does not mean the first month is free. AT&T is not sure what they will charge you because: “The monthly total on your bill may vary depending on your billing date and prorated monthly fees, based on the date of installation, that are applied to your account. Quoted prices don’t include taxes, fees, surcharges, shipping, or other charges including city video cost-recovery and Universal Services Fund fees, where applicable.” AT&T wouldn’t tell us exactly what those charges were.

Finally, AT&T includes some additional savings from various promotions, including an odd double gift card promotion awarding a total of $100 in Visa gift cards for signing up online:

The gift card promotion ends September 15, 2019 but will likely reappear. Customers have to submit their rebate request soon after service is ordered and spend the gift card(s) within six months to avoid forfeiture.

AT&T plans to roll out AT&T TV nationwide during 2020. But the company seems to be favoring markets where it already offers broadband service. It is not known if or when AT&T will introduce this streaming alternative to DirecTV in areas where other phone companies dominate. Customers do not have to use AT&T for internet access to subscribe.

Some Frontier Communications customers in Rochester were left without service early today in a “widespread” outage that impacted local governments, commercial customers, and medical care facilities. To prevent disruptions, working with Operant Billing can help keep your billing and financial operations running smoothly.

Medical facilities are relying on backup plans to maintain communications after service failed this morning, just days after the New York Public Service Commission warned Frontier Communications it must improve service after receiving a growing number of service complaints impacting service across the state.

The outage is just the latest in a growing series of outages that have left some customers without service for as long as five weeks. Last week, state regulators released results of their 2018 survey on the service quality of telephone companies serving New York and found service from four Frontier-owned affiliates lacking:

• Citizens Telecommunications Company of New York, Inc. (Citizens)
• Frontier Telephone of Rochester, Inc. (Frontier Rochester)
• Frontier Communications of New York, Inc. (Frontier New York)
• Frontier Communications of Ausable Valley, Inc. (Ausable Valley)

“The rate of consumer complaints received by the Department of Public Service (PSC Complaints) has significantly increased in the last several years for these companies,” the PSC report concludes. “In addition, a review of company-provided initial data shows poor performance regarding repair duration for customers who lose service. Further, Staff has received an increasing number of complaints from local, county, and State government representatives and officials from first-responder organizations regarding network reliability and timeliness of repairs in the service areas of these companies.”

Frontier was a clear standout among problematic service providers serving New York. The company currently serves 221,000 access lines from 211 central offices and is the largest independent telephone company in New York outside of Verizon. Frontier is the incumbent landline provider for 7.9% of the state’s total access lines, with its largest service area centered on Rochester and the 585 area code. The PSC notes Frontier has been rapidly losing customers, with 30,000 access lines disconnected in 2018 alone.

But not every Frontier division in New York has operated below the PSC’s standards. Former Rochester Telephone-owned entities including Frontier Ogden Telephone Company and Frontier Communications of Seneca-Gorham, as well as Frontier Communications of Sylvan Lake experienced no significant outages or complaints in 2018. Frontier often allows its divisions to be managed somewhat autonomously, with local managers keeping watch over operations in their area. Frontier offers little residential fiber optic service in its New York markets, except in selected new housing developments and in areas where the existing copper network has deteriorated or been damaged beyond practical repair. Most customers are offered copper-based DSL service over telephone lines installed decades ago.

Frontier’s ongoing and increasing financial problems may be responsible for the spike in service complaints and lengthening repair times. Employees have repeatedly told Stop the Cap! resources to deal with service issues are increasingly scarce and cost management is among the highest priorities inside the company. Frontier’s service repairs often take days, if not weeks. Company officials have told employees that since most people have cell phones, landline repairs are no longer as critical as they once were years ago. But spotty internet service can significantly damage local businesses, and outages are becoming more frequent and taking longer to repair.

“The PSC Complaint rate has significantly increased in the last several years for these Frontier companies,” the PSC found. “In addition, Staff has responded to a significant number of network reliability complaints and inquiries from local, county, and State government representatives, including emergency response entities. These complaints include long repair durations and repeated out-of-service conditions, as well as internet access and speed issues.”

Stop the Cap! has learned the New York State Attorney General’s office has also opened an informal inquiry into the increasing number of internet service complaints filed with the AG’s office.

To learn why Frontier is experiencing an increasing number of problems, the PSC has requested more granular trouble reports and will interview Frontier’s local supervisors and technicians to get a candid assessment of Frontier’s wireline facilities and what exactly is contributing to a deterioration of service. If Frontier is unwilling or unable to improve service, the PSC has warned it may take formal action against the company.

WHAM-TV in Rochester reports some Frontier customers in Mount Morris, N.Y., south of Rochester, have been without internet service for five weeks, causing frustration. (2:05)

WROC-TV in Rochester reports on another multi-day Frontier service outage, this one affecting residential and business customers in the Sea Breeze and Point Pleasant areas along Lake Ontario. (1:58)

Despite assurances from FCC Chairman Ajit Pai that the repeal of net neutrality would inspire cable operators to increase investment in broadband, a year-long virtual spending freeze by the nation’s top cable operators has resulted in a major vendor pulling out of the next generation cable broadband standard until there are signs cable companies are prepared to spend money on upgrades again.

Cisco Systems has confirmed to Light Reading it has ceased investment in Full Duplex DOCSIS technology that would allow cable customers to get the same upload speed as download speed.

“Cisco has internally communicated that we are suspending further investment in Full Duplex DOCSIS (FDX) until the market timing, ecosystem development and size of the opportunity can be quantified,” a Cisco spokesperson said in a statement to Light Reading.

The news is a significant blow to the cable industry’s plans to upgrade to 10 Gbps capacity and a growing desire by customers to get much faster upload speeds than are currently available.

Cisco blamed its pullback on the cable industry’s lack of investment in broadband upgrades and an uncertain timetable when major cable companies including Comcast, Charter, Cox, and others will announce specific plans for future upgrades.

FDX has already been the victim of delays. Originally planned as an incremental upgrade for DOCSIS 3.1, FDX is now scheduled to be included in CableLabs’ DOCSIS 4.0 specification, which is not expected to be released for a few years. FDX will be one of several new features incorporated into the next cable broadband standard, which will allow for low latency connections and an expanded amount of coaxial cable spectrum that can be devoted to broadband services.

The cable industry has been taking a sober look at the costs associated with adopting FDX, which includes scrapping a significant amount of coaxial cable and pushing fiber optic technology much closer to customers. Cable systems that want to move towards FDX will have to remove amplifiers that maintain signal strength between the fiber optic connection and the coaxial cable entering customers’ homes. In some cases, this will mean removing multiple amps from the cable system and stringing new fiber optic cables deep into neighborhoods. This is known as node+0 architecture. Moving towards node+0 is expected to be both costly and labor intensive, and some large cable systems and investors are balking.

“There are a lot of operators who have no intention of getting to a node+0 environment in next 10 years,” Tom Cloonan, chief technical officer of Arris’ Networks Solutions unit, told Multichannel News last fall. “It’s going to take a while to run fiber deep enough to get to node+0.”

To date, the only major cable operator that has definitively backed moving to node+0 is Comcast. Other cable companies, notably Cox Communications, are seeking a much cheaper solution to manage upgrades.

Extended Spectrum DOCSIS (ESD)
Image courtesy of: Huawei

An emerging alternative concept has emerged that can be implemented at a lower cost. Extended Spectrum DOCSIS (ESD) would essentially repurpose much of the bandwidth available over a coaxial cable solely to broadband service. DOCSIS 3.1 currently dedicates 1.2 GHz of spectrum for broadband. FDX would increase that to more than 1.8 GHz. ESD would devote as much as 3 (or possibly 6) GHz of spectrum for data transmissions. The cable system would devote as much as half of that spectrum for downstream traffic, the other half for upstream. Theoretical speeds in the future could be as high as 60 Gbps, and ESD will not require cable systems to ditch existing amplifiers. It will, however, force some cable systems to evaluate and replace at least part of their older coaxial cable network. ESD will be less forgiving of deteriorating cable than DOCSIS 3.1 is.

Unfortunately for Cisco, and other cable broadband equipment suppliers, ESD is still more theory than fact, and with cable operators demonstrating they are in no rush to move to either FDX or ESD, it will likely be several years before either technology becomes available to customers. Cloonan predicts ESD will not be implemented by cable systems until the mid-2020s.

The muddy waters over where the cable industry will ultimately plant the flag on next generation broadband upgrades means a lot of uncertainty for companies like Cisco, which has resulted in the company pulling out of developing FDX until there are assurances the cable industry has a timetable to implement it. The decision has also cost several Cisco employees their jobs. Multiple industry sources told Light Reading job cuts included 5-7 engineers dedicated to FDX, and some sources also report at least 40 employees in the cable access division of Cisco have also been let go.

If certainty does not return to the cable broadband market soon, Cisco could ultimately jettison much of its cable broadband technology division to focus on other technology growth areas.

The cable industry’s investment freeze is ironic because the Trump Administration’s FCC trumpeted its decision to repeal net neutrality, claiming it would inspire cable operators to accelerate investment in network upgrades. It appears the exact opposite has occurred.

Verizon Wireless has sued the City of Rochester, N.Y. in a potentially precedent-setting case, for demanding excessive and discriminatory fees to use public rights-of-way to deploy a fiber backhaul network and hundreds of small cells to support the introduction of 5G wireless service in the community.

The lawsuit, Cellco Partnership (d/b/a Verizon Wireless) v. City of Rochester seeks a declaratory judgment acknowledging that local laws regarding the use of rights-of-way by telecommunications companies have been largely overridden by the Trump Administration’s Federal Communications Commission. Under FCC guidelines, the maximum compensation rate a city can generally collect is $270 annually for each small cell site, far less than what the City of Rochester hopes to collect from telecommunications companies planning to dig up streets and place hundreds of small cell antennas on utility and light poles across the city.

The two parties are far apart on what defines fair and just compensation. In early 2019, the City of Rochester introduced a new fee schedule that seeks $1,500 annually for the use of each publicly owned utility or light pole, and $1,000 per standalone “smart pole” erected by a wireless company to support a small cell. Verizon Wireless wants to pay no more than $270 annually for either type.

The City also wants compensation to cover “administrative costs for retaining and managing documents and records,” “costs for managing, coordinating and responding to public concerns and complaints,” and “the costs of the City’s self-insurance.” Verizon Wireless’ attorneys argue that the FCC’s “presumptive limit” of $270 annually is all-inclusive, and therefore the fees requested are inherently unreasonable.

The City ordinance is also designed to discourage providers from installing cables on existing utility poles, preferring underground installation.

“Aerial installation of fiber or other telecommunications facilities and accessory equipment strung between poles, buildings, or other facilities, is strongly discouraged due to area weather, safety concerns, limited capacity, and aesthetic disturbances,” the ordinance reads. But Verizon Wireless argues the extra fees demanded by the City for underground burial of fiber optic cable are illegal under federal law.

“The Code’s ‘underground’ fee structure is not a reasonable approximation of actual cost, is not objectively determined, and is discriminatory,” Verizon Wireless argues.

The City’s fees for fiber optic cable installation are significant. Verizon Wireless’ lawsuit notes fees start at $10,000 for up to 2,500 linear feet of installed fiber optic cable, plus an additional $1.50 for each additional foot from 2,500-12,500 feet and $0.75 for each additional foot above 12,500 feet. After the first year, fees continue at $5,000 annually for up to 2,500 feet, $1 for each additional foot from 2,500-12,500 feet, and $0.50 for each additional foot above 12,500 feet. Somewhat lower fees apply if Verizon places its fiber cables in an existing conduit with other cables, or if it uses directional boring to place conduit and wiring without disturbing lawns, roads, or sidewalks.

Curtin

Verizon Wireless’ attorneys argue the fees cannot possibly reflect the City’s true costs because the charges are the same regardless if Verizon installed three feet or 2,000 feet of fiber optic cable.

But City Corporation Counsel Tim Curtin told the Democrat & Chronicle the city’s new fee schedule is comparable to what other cities are charging, and the City is planning more restrictions to keep providers from repeatedly digging up streets and yards to place new cable and equipment.

“This is a serious problem with people digging up the same right of way every other day and not repairing it,” Curtin told the newspaper.

The City is also exploring passing a new “dig once” policy that would incentivize providers to coordinate fiber installation to place wiring and equipment in a single shared conduit in return for lower fees. But providers like Verizon Wireless consider it in their competitive advantage to wire cities like Rochester before their competitors do.

“To better serve its customers and the City and to begin to serve new customers and provide new services, Verizon Wireless seeks to extend, densify, and upgrade its wireless network infrastructure [in Rochester], including to install additional Small Wireless Facilities to support the provision of current and next-generation telecommunications services such as 5G and to deploy fiber to connect these facilities. To successfully do this, Verizon Wireless requires new approvals from [the City of Rochester] to access City property,” Verizon’s lawsuit states. Because of the City’s fees and policies, “Verizon Wireless has been, and will continue to be, damaged and irreparably harmed, […] [including] an effective prohibition on Verizon Wireless’s ability to provide telecommunications services in the affected area of the City.”

In short, Verizon Wireless is threatening not to deploy 5G service in the area if the City successfully defends its fees and requirements.

Curtin argues Verizon Wireless is the only provider unwilling to comply with the City’s requirements, while others are moving forward under the new ordinance. One provider likely covered by Curtin’s claim is residential fiber overbuilder Greenlight Networks, which has installed fiber to the home service across several city neighborhoods for the past several years. But in 2019, Greenlight began focusing on installations in suburbs west of Rochester, and several city neighborhoods proposed for service have languished for years with “easements required” status, which could reflect Greenlight’s reluctance or ability to pay the City’s new fees.

Verizon has been the most aggressive wireless provider in Western and Central New York with respect to the proposed 5G service expansion. In addition to being the incumbent local telephone company in several New York cities (excluding Rochester), it has also offered spotty FiOS fiber to the home service in several suburbs of Buffalo and Syracuse.

A small cell

In contrast with Rochester, the City of Syracuse decided to effectively “partner” with Verizon Wireless to deploy 5G small cells to be considered America’s “first fully 5G city.” To win Verizon over, the City mothballed its existing fee policy in 2019 that charged $950 per small cell tower, resetting the rate to match the FCC’s presumed maximum of $270 annually. In return, Verizon has tentatively agreed to place up to 600 smart cell poles around the city, paying $162,000 a year. Verizon also agreed to pay a $500 application fee for each pole project (covering up to a maximum of five poles per project). Nobody is certain whether 600 smart cells are enough to saturate the city with 5G coverage, where exactly Verizon will ultimately place the small cells, or exactly when.

Ken Schmidt, president of Steel in the Air, a consultant to public and private landowners and municipalities on matters related to wireless infrastructure valuation, offered to advise the City of Syracuse for free about its agreement with Verizon Wireless, but the City never returned his calls, despite his direct experience working with other cities that negotiated with Verizon Wireless over 5G smart cells, pole attachment fees, and antenna placement rules.

“Syracuse seems to have bent over backward for Verizon,” Schmidt argues on his blog. “Make no mistake, there are benefits to becoming a 5G city, but this agreement does no more for Syracuse than it does for other cities where Verizon promised the same thing. At least some of the other cities didn’t enter into such a one-sided agreement. For example, Sacramento, San Diego and San Jose negotiated better terms and conditions than Syracuse did, and will have a similarly robust small cell deployment.”

Many consultants recommend that cities consider whether Verizon’s threats not to deploy 5G service are real, especially considering the company’s PR claims that moving forward with 5G is essential to Verizon’s network expansion.

Schmidt

Schmidt acknowledges the current FCC has a vested interest in helping large wireless companies deploy 5G infrastructure with a minimum of interference or fees from local governments.

“While the City could have negotiated a higher amount for the pole access rights or permit fees, it would have had to demonstrate that its actual costs in reviewing small cell applications and maintaining the rights-of-way were higher than the nominal fees allowed by the FCC,” Schmidt said.

Verizon’s lawyers appeared to outmaneuver the City’s attorneys by winning a number of concessions for Verizon that Syracuse will have to live with for up to 45 years. Schmidt’s recommendations may be useful to other cities, including Rochester, wrestling with these issues.

Schmidt:

Syracuse granted rights to Verizon for upward of 45 years when it didn’t have to. The city signed a master license agreement for 20 years, which allows Verizon to install poles under individual pole licenses that run up to 25 years from the date the pole was installed. Thus, if a pole is installed in year 20, it will be there for another 25 years. In short, the city is entering a possible 45-year agreement even though there is no legal requirement to do so by the FCC or any other agency. While Verizon surely prefers a much longer agreement, other cities are entering much shorter, 10-year agreements with Verizon. Verizon retained the right to terminate “at any time for any reason or no reason by written notice to the city,” but the city does not have the same right. So, the city is now committed to this specific agreement legally, regardless of what happens with technology in the future.

The agreement entered into by the city concedes unnecessary rights to Verizon under contract law. The agreement is substantially the same as other agreements proposed by Verizon to other cities. It attempts to incorporate many of the standards from the FCC Order into the license agreement. From a legal perspective, these clauses did not need to be in the license agreement. If Verizon felt the city was not adhering to the FCC order, Verizon by default has the option of requesting relief from the FCC or filing in federal court for injunction or damages. However, by adding the language in the license agreement, Verizon can now file in state court on a civil claim if Verizon believes the city is in breach of the agreement and collect monetary damages. This is absolutely of no benefit to Syracuse.

Other cities have received additional compensation in the form of public safety or “internet of things” monitoring and services, and higher fees to help pay for additional staff to review small cells applications. Syracuse received nothing. In fairness, the other cities are bigger and more important to Verizon than Syracuse. Nonetheless, the only concession Verizon appears to have made to Syracuse is the requirement for Verizon to monitor a limited set of small cells for compliance with applicable radio frequency emission standards. Verizon did not commit to deploying a certain number of small cells by any date. It is not required to deploy in the poorer areas of the city. And it did not commit to smart city initiatives or research on how 5G can benefit the residents of Syracuse.

The agreement gives the city limited rights to terminate, even if health risks are identified and proven. The city, in what appears to be an effort to appease its citizens that small cells are safe, inserted language that requires Verizon to test up to 5% of the small cells annually to confirm that they meet the minimum applicable health, safety and radio frequency regulations. The city could also test on its own, but only to confirm compliance with applicable FCC standards. By agreeing to a long-term license with limited rights to terminate, the city could be legally committed to Verizon small cells in the public right of way even if there is ample evidence that they should be removed, unless the FCC revokes its order.

By agreeing to such a one-sided agreement, the city has condemned itself to agree to similar agreements with any company providing wireless services who want to deploy in the right-of-way. Under the FCC Order and previous case law regarding the Telecommunications Act of 1996, the city may not discriminate between similar providers of wireless services. By agreeing to the terms with Verizon, the city will have a difficult time agreeing to different terms with other providers.