Mid-Rivers Communications, a Montana-based telecom co-op, wants everyone to believe their mandatory, usage-based broadband scheme that charges $19.95 a month + $0.20 per gigabyte is popular with their customers.

After the company noticed that fewer than 20% of customers were responsible for more than 90% of Mid-Rivers’ network traffic, it decided to ditch its traditional usage-capped, speed tier plans in favor of a compulsory usage-based billing scheme that included the maximum speed available, sometimes as high as 1Gbps, with no usage allowance.

To listen to Michael Candelaria, Mid-Rivers CEO and general manager, people have lined up at the doors just waiting to sign up, according to an interview published by Telecompetitor:

Initially the company tested usage-based pricing as an option in one CLEC market. But considering that 80% of customers opted for usage-based pricing within one year of its introduction, Mid-Rivers moved completely to usage-based pricing and launched it throughout all four CLEC markets.

Mid-Rivers has been particularly proud of the response it has received from local businesses. Candelaria noted that local hotels have seen occupancy drop after the area experienced an oil-related boom, followed by a bust. Nearly-empty hotels were paying $500 to $1,000 a month for high-bandwidth connections from competitors but only using a fraction of the capacity. The Mid-Rivers usage-based broadband offering was perfect for them.

During certain months, the hotels’ bills are dramatically lower than they were before.

“When the hotel is full, their bill goes up and they know why,” Candelaria said.

Meanwhile, as businesses that were not Mid-Rivers customers heard about the usage-based offering, “they came to us” after “we beat on their door for 20 years,” he noted.

But as news of the interview spread, it seems more than a few customers are not happy with Mid-Rivers’ new broadband pricing, and accused the company of propagandizing its usage based pricing scheme and censoring social media to suppress customer backlash.

Candelaria admitted the company used to take a lot of heat from customers that called up and asked for the cheapest internet plan available, which was $40 a month for 1.5Mbps service. At those speeds and prices, customer slammed the company’s Facebook page.

“This is where Candelaria time traveled a bit on his answer,” reflects Dan Corey, a customer rebutting Candelaria’s case. “Before the usage-based internet [plans], the tiers Mid-Rivers [offered] were 8, 12, and up to 50Mbps. There has not been a 1.5Mbps speed at Mid-Rivers for years.”

These days, Candelaria claims, complaints about speed and pricing are mostly gone.

“Of course they are gone,” responds customers J.P. and Kyle Jones, who jointly shared their feelings with Stop the Cap! “Mid-Rivers now censors their social media after taking a lot of heat so complaints are never publicly seen on their Facebook page.”

“Mid-Rivers must approve any comments made on their Facebook page, so 90% of the complaints are never seen unless Mid-Rivers has a full (even if not accurate) response ready to post along with it,” adds Corey. “No dissatisfied customers would know of others because of the control. Their Facebook page used to show all comments when posted, but that changed once they got a better understanding of how to control the flow of comments.”

Jones points out that the reason “80% of customers opted for usage-based pricing” is that any account change automatically forced the customer onto a usage-based pricing plan whether they wanted it or not. Most customers, including himself, do not want data caps or usage pricing, but he didn’t get a choice in the end.

“Put yourself in the shoes of a customer that used to be enrolled in Mid-Rivers’ Preferred Plan, which cost $59.95 a month and includes 600GB of usage at 12/1Mbps speeds,” writes J.P. “People don’t live in Montana for the social life so we spend a lot of time streaming video at home. Under Mid-Rivers’ new plan, if I used 500GB a month, I’d pay $20 for the account and $100 in usage charges — double what I paid a month earlier just for faster speed I could have paid more to get if I wanted or needed it. How many people do you think are enthusiastically waiting to pay double what they used to for internet?”

Mid-Rivers new usage-based plan.

For Candelaria, “Wide Open Wi-Fi”  is about selling fast internet access for less, and customers should only pay for what they use.

“People have been paying for utilities by usage for some time,” he told Telecompetitor. “Customers don’t tally up how much electricity they use and then order a 30-kilowatt plan and they don’t count how many showers they take to determine what kind of water plan they need. Why should the internet be any different? Everybody should have good internet. It doesn’t matter if you’re rich, poor, you should be able to afford fast internet.”

Customers like J.P. agree with wanting fast and affordable internet, but argue this isn’t that. Where available, “Wide Open Wi-Fi” quickly becomes the only option Mid-Rivers offers, he claims.

“The reason for the [high] ‘take rates’ is that if you attempt to change or upgrade service, you are forced onto the usage-based service,” adds Corey. “There is no choice, so the take rates are very misleading. Customer satisfaction would increase for those that don’t use the service as of now. However, with more and more of the world going to internet, those customers will feel the squeeze soon enough.”

For customers that avoid calling Mid-Rivers and keep their heads down to keep their current plan, that doesn’t stop the company from eventually notifying customers their plan was changing whether they liked it or not.

Mid-Rivers older tiered plans.

“You will be ‘offered’ the Wide Open internet shortly I’m sure. Just like we in the cable modem towns were,” noted BigSkyGuy. “However, once not enough people switch to it, or it’s been some pre-determined amount of time, you’ll be forced onto it like the rest of us. Then you can enjoy the larger bills. Just like your forced router unfortunately.”

Mid-River sells its “Wide Open” service as a great way to get rid of data caps and tiered plans, and includes a free Wi-Fi router:

• Virtually unrestricted speeds
• Connected Home Wi-Fi included!
• No more tiered plans! You automatically get the fastest speed!
• No more data caps
• Pay for only what you use
• Your speed and experience will be greatly enhanced
• Your perfect plan – whether you need the fastest speeds or the most affordable option
• You as the customer will have control over your Internet bill*

That asterisk points to fine print that explains for $19.95 a month, you get no data allowance. You are billed $0.20 per gigabyte in one gigabyte increments. Don’t like the high bill that results?

“Your bill can be controlled by monitoring how much data you are using, use less and your bill will decrease,” the company explains.

But for most internet users, using less isn’t an easy option, especially as cord-cutting shifts more viewing towards the internet. Once Netflix, Hulu and similar services detect the faster speeds available on Mid-Rivers’ metered plan, their players increase video bandwidth to match available speed unless the customer intervenes. If they don’t, streaming can get very expensive.

“I have been hit with that Wide Open internet scam […] and unless you change your settings in [Netflix, Hulu, CBS, etc.] it’ll run you up to 7GB an hour, especially when it reads that speed setting from the Wide Open. In essence, Mid-Rivers is making you pay $1.40 per hour of Netflix,” writes BigSkyGuy. “Now granted, you can go in and change your settings, but how many people really know you can do that?”

The meter is lurking.

Candelaria argues the majority of Mid-Rivers customers use less than 100GB a month and their bill is less than $40, which is nearly $5 less than Mid-Rivers’ cheapest plan at $44.95, which includes a 300GB data allowance. He also claimed ‘the change to usage-based broadband has increased customer satisfaction and take rates – and while margins initially dropped, profitability was back to its previous level within six months.’

To accomplish that, either the company has signed up more new customers under the plan than it expected or usage charges from heavier users are covering the lost revenue. For Candelaria’s statement to remain true, “most customers” would have to use less than 100GB of usage a month for their bill to remain under $40. Lighter use customers may benefit from the faster speeds and continue to pay less as long as their usage stays at or near 100GB a month. But as average internet use continues to increase, so will customers’ bills.

Jones says the news isn’t all good for Montana businesses either.

“In areas where Charter/Spectrum offers business internet service, their bills are a fraction of what Mid-Rivers is charging if that business tends to run up a lot of usage, and there are no surprise bills from Mid-Rivers’ traffic charges,” Jones notes. “The problem is that Mid-Rivers is charging sky-high usage fees of $0.20/GB while other ISPs pay at most pennies per gigabyte. In fact, most ISPs buy bandwidth based on meeting demand during peak usage times, not traffic alone. During off-peak times, using your connection costs Mid-Rivers next to nothing, but Mid-Rivers keeps charging $0.20/GB day and night.”

BigSkyGuy notes other ISPs in the area are offering customers a better value proposition with flat-rate internet that will quickly be the envy of many Montanans facing future Mid-Rivers’ usage charges:

• RTC/Reservation Telephone Cooperative: (100/100Mbps) UNLIMITED DATA $55/month
• Midco/Midcontinent Communications: (75/5Mbps) UNLIMITED DATA $56/month or (25/3Mbps) UNLIMITED DATA $42/month
• Nemont: (10/10Mbps) UNLIMITED DATA $71/month

As Cox Communications continues to expand its arbitrary data cap program on its broadband customers, the company has announced a ‘cap relief’ option for customers willing to pay $50 more for the same service they enjoyed last year without a data cap.

Company insiders tell DSL Reports Cox will introduce a new $50 option to avoid the data caps and overlimit fees the company began imposing in 2015 starting in its Cleveland, Ohio service area.

On Wednesday, Cox is expected to introduce two add-on options to help avoid the bill shock likely if customers exceed 1TB of usage per month and face the $10 overlimit fee for each 50GB of data consumed:

• $30 a month for 500GB of extra data;
• $50 a month to avoid data caps altogether and get back unlimited service.

Cox customers in Cleveland were unimpressed with Cox’s data caps when they were introduced in 2015.

These fees are in addition to whatever Cox customers currently pay for broadband service.

“An overwhelming majority of data is consumed by a very small percentage of internet users,” a memo to employees documenting the changes reads. “The new choices are great options for the small percentage of heavy users who routinely use 1TB+ per month and prefer a flat monthly rate, rather than purchasing additional data blocks. In Cox markets with usage-based billing, the less than two percent of customers who exceed the amount of data included in their plan still have the option of paying $10 for each additional 50GB of data when they need it.”

Such claims raise the same questions Stop the Cap! has always asked since we began fighting data caps in 2008:

If data caps only impact <2% of customers, why impose them at all?

Is the actual revenue earned from overlimit fees worth the expense of introducing usage measurement tools, billing system changes, and the cost of customer dissatisfaction at the prospect of an unexpectedly high bill?

What technical reasons did Cox choose 1TB as its arbitrary usage allowance other than the fact Comcast and other operators chose this level first?

Time Warner Cable executives privately admitted in internal company documents obtained by the New York Attorney General’s office that internet traffic costs represent little more than “a rounding error” in expenses for cable companies. But for most consumers, $30-50 to buy a bigger data allowance is hardly that.

In short, the “solution” Cox has decided on this week comes in response to a problem the company itself created — imposing arbitrary, unwanted data caps and overlimit fees on a product that is already intensely profitable at the prices Cox has charged for years. This internet overcharging scheme is just another way to gouge captive customers that will likely have only one alternative — the phone company and its various flavors of DSL or a U-verse product that cannot compete on speed unless you are lucky enough to live in a fiber-to-the-home service area.

Like the railroad robber barons of more than a century ago, a handful of phone and cable companies are getting filthy rich from a carefully engineered oligopoly that costs the average American $540 a year more than it should to deliver vital telecommunications services.

That is the conclusion of a new study from the Washington Center for Equitable Growth, authored by two men with decades of experience representing the interests of consumers. They recommend stopping reckless deregulation without strong and clear evidence of robust competition and ending rubber stamped merger approvals by regulators.

The trouble started with the passage of the 1996 Telecommunications Act, a bill heavily influenced by telecom industry lobbyists that, at its core, promoted deregulation without assuring adequate evidence of competition. It was that Act, signed into law by President Clinton, that authors Gene Kimmelman and Mark Cooper claim is partly responsible for today’s “highly concentrated oligopolistic markets that result […] in massive overcharges for consumer and business services.”

“Prices for cable, broadband, wired telecommunications, and wireless services have been inflated, on average, by about 25 percent above what competitive markets should deliver, costing the typical U.S. household more than $45 per month, or $540 per year, for these services,” the report states. “This stranglehold over these essential means of communication by a tight oligopoly on steroids—comprised of AT&T Inc., Verizon Communications Inc., Comcast Corp., and Charter Communications Inc. and built through mergers and acquisitions, not competition—costs consumers in aggregate almost $60 billion per year, or about 25 percent of the total average consumer’s monthly bill.”

The cost of delivering service is plummeting even as your bill keeps rising.

The authors also claim that these four companies earn astronomical profits — between 50 and 90% — on their services, compared with the national average of just under 15% for all industries.

The only check on these profits came from the 2011 rejection of the merger of AT&T and T-Mobile, which started a small price war in the wireless industry, saving customers an average of $5 a month, or $11 billion a year collectively.

But antitrust enforcement alone is inadequate to check the industry’s anti-competitive behavior. Competition was supposed to provide that check, but policymakers too often kowtowed to the interests of telecom industry lobbyists and prematurely removed regulatory oversight and protections that were supposed to remain in place until real competition made those regulations unnecessary.

Attempts to force open closed networks to competitors were allowed in some instances — particularly with local telephone companies, but only for certain legacy services. Newer products, particularly high-speed broadband, were usually not subject to these open network policies. The companies lobbied heavily against such requirements, claiming it would deter investment.

The framers of the ’96 Act also mandated an end to exclusive franchise agreements that barred phone and cable companies from entering each others’ markets. This was intended to allow phone and cable companies to compete head to head, setting up the prospect of consumers having multiple choices for these providers.

Current FCC Chairman Ajit Pai frequently cites the 1996 Communications Act as being “light touch” regulation that promulgated the broadband revolution. But in reality, the Act sparked a massive wave of corporate consolidation in broadcasting, cable, and phone companies at the behest of Wall Street.

“[Cable companies] refused to enter new markets to compete head to head with their sister companies [and] never entered the wireless market,” the authors note. “Telephone companies never overbuilt other telephone companies and were slow to enter the video market. Each chose to extend their geographic reach by buying out their sister companies rather than competing. This means that the potentially strongest competitors—those with expertise and assets that might be used to enter new markets—are few. This reinforces the market power strategy, since the best competitors have followed a noncompete strategy.”

Wall Street sold consolidation on the theory of increased shareholder value from eliminating duplicative costs and workforces, consolidating services, and growing larger to stay competitive with other companies also growing larger through mergers and acquisitions of their own:

• The eight regional Baby Bells created after the breakup of AT&T’s national monopoly in the mid-1980s eventually merged into two huge wireline and wireless companies — AT&T and Verizon. The authors note these companies didn’t just acquire those that were part of the Ma Bell empire. They also bought out independent companies like GTE and long distance companies like MCI. Most of the few remaining independents provide service in rural areas of little interest to AT&T or Verizon.
• The cable industry is still in a consolidation wave combining large players into a handful of giants, including Comcast and Charter Communications, which also have close relationships with content providers. Altice entered the U.S. cable business principally on the prospect of consolidating cable companies under the Altice brand, not overbuilding existing companies with a competing service of its own.

Such consolidation wiped out the very companies the ’96 Act was counting on to disrupt existing markets with new competition. Comcast, Charter, and Verizon even have agreements to cross-market each others’ products or use their infrastructure for emerging “competitive” services like mobile phones and wireless broadband.

“By the standard definitions of antitrust and traditional economic analysis, a tight oligopoly has developed in the digital communications sector,” the report states. “While some markets are slightly more competitive than others, the dominant firms are deeply entrenched and engage in anti-competitive and anti-consumer practices that defend and extend their market power, while allowing them to overcharge consumers and earn excess profits.”

“The impact of this abuse of market power on consumers is clear. According to the most recent Consumer Expenditure Survey by the U.S. Bureau of Labor Statistics, the ‘typical’ middle-income household spends about $2,700 per year on a landline telephone service, two cell phone subscriptions, a broadband connection, and a subscription to a multichannel video service,” the report indicates. “Adjusting for the ‘average’ take rate of services in this middle-income group, consumers spend almost twice as much on these services as they spend on electricity. They spend more on these services than they spend on gasoline. Consumer expenditures on communications services equal about four-fifths of their total spending on groceries.”

The authors point out the Obama Administration, unlike the Bush Administration that preceded it, was the first since the 1996 Act’s passage to begin implementing policies to enhance and protect competition, and also check unfettered market power among the largest incumbent providers:

• It blocked the AT&T/T-Mobile merger, which would have removed an important competitor and affect wireless rates in just about every U.S. city. The Obama Administration’s opposition not only preserved T-Mobile as a competitor, it also made that company review its business plan and rebrand itself as a market disruptor, forcing wireless prices down substantially for the first time and collectively saving all wireless customers in the U.S. billions from rate increases AT&T and Verizon could not carry out.
• It blocked the Comcast/Time Warner Cable merger, which would have given Comcast unprecedented and unequaled control over internet access and content providers in the U.S. It would have immediately made other cable and phone companies potentially untenable because of their lack of market power and ability to achieve similar volume discounts and economy of scale, and would have blocked emerging competitors that could not create credible business plans competing with Comcast.
• It blocked informal Sprint/T-Mobile merger talks that would have combined the third and fourth largest wireless carriers. Antitrust regulators were concerned this would dramatically reduce the disruptive marketing that we still see today from both of these companies.
• It placed restrictions on Comcast’s merger with NBC Universal and Charter’s acquisition of Time Warner Cable. Comcast was required to effectively become a silent partner in Hulu, a vital emerging video competitor. Charter cannot impose data caps on its customers for up to seven years, helping to create a clear record that data caps are both unnecessary and unwarranted and have no impact on the cost of delivering internet services or the profits earned from it.
• Strong support for Net Neutrality, backed with Title II enforcement, has given the content marketplace a sense of certainty and stability, allowing online cable TV competitors to emerge and succeed, giving consumers a chance to save money by cutting the cord on bloated TV packages. If providers were given the authority to discriminate against internet traffic, it would place an unfair burden on competitors and discourage new entrants.

The authors worry the Trump Administration and a FCC led by Chairman Ajit Pai may not be willing to preserve the first gains in broadband and communications competitiveness since mergermania removed a lot of those competitors.

“The key lesson in the communications sector is that vigorous regulation and antitrust enforcement can create the conditions for market success. But balance is the key,” the reports warns. “Technological innovation and convergence are no guarantee against the abuse of market power, but the effort to control the abuse of market power should not stifle innovation. If the Trump administration jettisons the enforcement practices of the past eight years, then the telecommunications sector is likely to see a wave of new consolidation and a dampening of the price cutting and innovative wireless and broadband services that have been slowly emerging.”

July 17, 2017

Marlene H. Dortch, Secretary
Federal Communications Commission
Office of the Secretary
445 12th Street, SW
Washington, DC 20554

Dear Ms. Dortch,

Stop the Cap! is writing to express our opposition to any modification now under consideration of the 2015 Open Internet Order.

Since 2008, our all-volunteer consumer organization has been fighting against data caps, usage-based billing and for Net Neutrality and better broadband service for consumers and businesses in urban and rural areas across the country.

Providing internet access has become a bigger success story for the providers that earn billions selling the service than it has been for many consumers enduring substandard service at skyrocketing prices.

It is unfortunate that while some have praised Clinton era deregulatory principles governing broadband, they may have forgotten those policies were also supposed to promote true broadband competition, something sorely lacking for many consumers.

As a recent Deloitte study[1] revealed, “only 38 percent of homes have a choice of two providers offering speeds of at least 25Mbps. In rural communities, only 61 percent of people have access to 25Mbps wireline broadband, and when they do, they can pay as much as a 3x premium over suburban customers.”

In upstate New York, most residents have just one significant provider capable of meeting the FCC’s 25Mbps broadband standard – Charter Communications. In the absence of competition, many customers are complaining their cable bills are rising.[2]

Now providers are lobbying to weaken, repeal, or effectively undermine the 2015 Open Internet Order, and we oppose that.

We have heard criticisms that the 2015 Order’s reliance on Title II means it is automatically outdated because it depends on enforcement powers developed in the 1930s for telephone service. Notwithstanding the fact many principles of modern law are based on an even older document – the Bill of Rights, the courts have already informed the FCC that the alternative mechanisms of enforcement authority that some seem motivated to return to are inadequate.

In a 2-1 decision in 2014, the U.S. Court of Appeals for the D.C. circuit ruled:

“Given that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the Commission from nonetheless regulating them as such. Because the Commission has failed to establish that the anti-discrimination and anti-blocking rules do not impose per se common carrier obligations, we vacate those portions of the Open Internet Order.”[3]

In fact, the only important element of the pre-2015 Open Internet rules that survived that court challenge was a disclosure requirement that insisted providers tell subscribers when their internet service is being throttled or selected websites are intentionally discriminated against.

Unfortunately, mandatory disclosure alone does not incent providers to cease those practices in large sections of the country where consumers have no suitable alternative providers to choose from.

Reclassifying broadband companies as telecommunications services did not and has not required the FCC to engage in rate regulation or other heavy-handed oversight. It did send a clear message to companies about what boundaries were appropriate, and we’ve avoided paid prioritization and other anti-consumer practices that were clearly under consideration at some of the nation’s top internet service providers.

In fact, the evidence the 2015 Open Internet Order is working can be found where providers are attempting to circumvent its objectives. One way still permitted to prioritize or favor selected traffic is zero rating it so use of preferred partner websites does not count against your data allowance.[4] Other providers intentionally throttle some video traffic, offering not to include that traffic in your data allowance or cap.[5] Still others are placing general data caps or allowances on their internet services, while exempting their own content from those caps.[6]

Our organization is especially sensitive to these issues because our members are already paying high internet bills with no evidence of any rate reductions for usage-capped internet service. In fact, many customers pay essentially the same price whether their provider caps their connection or not. It seems unlikely consumers will be the winners in any change of Open Internet policies. Claims that usage caps or paid prioritization policies benefit consumers with lower prices or better service are illusory. One thing is real: the impact of throttled or degraded video content which can be a major deterrent for consumers contemplating disconnecting cable television and relying on cheaper internet-delivered video instead.

Arguments that broadband investment has somehow been harmed as a result of the 2015 Order are suspect, if only because much of this research is done at the behest of the telecom industry who helped underwrite the expense of that research. Remarkably, similar claims have not been made by executives of the companies involved in their reports to investors. Those companies, mostly publicly-traded, have a legal obligation to report materially adverse events to their shareholders, yet there is no evidence the 2015 Order has created a significant or harmful drag on investment.

In a barely regulated broadband duopoly, where no new significant competition is likely to emerge in the next five years (and beyond), FCC oversight and enforcement is often the only thing protecting consumers from the abuses inherent in that non-competitive market. Preserving the existing Open Internet rules without modification is entirely appropriate and warranted, and has not created any significant burdens on providers that continue to make substantial profits selling broadband service to consumers.

Transferring authority to an overburdened Federal Trade Commission, not well versed on telecom issues and with a proven record of taking a substantial amount of time before issuing rulings on its cases, would be completely inappropriate and anti-consumer.

Therefore, Stop the Cap!, on behalf of our members, urges the FCC to retain the 2015 Open Internet Order as-is, leaving intact the Title II enforcement foundation.

Respectfully yours,

Phillip M. Dampier
Founder and Director

Footnotes:

[1] https://www2.deloitte.com/us/en/pages/consulting/articles/communications-infrastructure-upgrade-deep-fiber-imperative.html#1

[2] “Thousands of Time Warner Cable Video Customers Flee Spectrum’s Higher Prices.” (http://bit.ly/2tjHJ8f); “Lexington’s Anger at Spectrum Cable Keeps Rising. What Can We Do?” (http://www.kentucky.com/news/local/news-columns-blogs/tom-eblen/article160754069.html)

[3] http://www.cadc.uscourts.gov/internet/opinions.nsf/3AF8B4D938CDEEA685257C6000532062/$file/11-1355-1474943.pdf

[4] https://cdn3.vox-cdn.com/uploads/chorus_asset/file/7575775/Letter_to_R._Quinn_12.1.16.0.pdf

[5] https://www.t-mobile.com/offer/binge-on-streaming-video.html

[6] http://www.chicagotribune.com/bluesky/technology/ct-data-cap-policies-20151214-story.html