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Broadband Industry Pushing for Industry Version of Net Neutrality

A group largely funded by the telecommunications industry is among the latest to call on Congress to pass net neutrality legislation, just as long as the cable and phone companies that have fiercely opposed net neutrality as we know it get the chance to effectively write the law defining their vision of a free and open internet.

Broadband for America (BfA) has long pretended to represent the interests of consumers. It has tried to steer clear of partisan politics by representing itself as a bipartisan organization, claiming that since its formation in 2009, the Broadband for America coalition “has included members ranging from consumer groups, to content and application providers, to the companies that build and maintain the internet. Together these organizations represent the hundreds of millions of Americans who are literally connected through broadband.”

In this spirit, BfA has given top priority to adopting a new, bipartisan, federal net neutrality law that would eliminate the regulatory uncertainty changing administrations have introduced through agencies like the FCC.

The telecom industry shuddered under the Obama Administration’s FCC with Thomas Wheeler as chairman. Wheeler pushed for bright line net neutrality rules that cut off the industry’s ability to toy with paid fast lanes on the internet, potentially costing telecom companies billions in future revenue opportunities. Wheeler backed his regulatory authority by using Title II regulations that have withstood corporate court challenges since the 1930s, and made clear that authority also extended to blocking or banning future creative monetization schemes that unfairly favored some internet traffic at the expense of other traffic.

The incoming Trump Administration discarded almost every regulatory policy introduced by Wheeler through its appointed FCC chairman, Ajit Pai. With Republicans in firm control at the FCC, in the White House, and in Congress, the broadband industry and its political allies feel safe to draft and pass a new federal law that will give companies regulatory certainty. One proposal could potentially permanently remove the FCC’s future ability to flexibly manage changing broadband industry practices.

BfA’s “pro net neutrality” campaign directly targets consumers through its website while also pretending to represent their interests. It is a classic D.C. astroturfing operation — fooling unwitting consumers into pushing for policies against their best interests. BfA claims it supports “policies that align with the core principles of an open internet: no blocking, no throttling, no discrimination and most importantly, ensuring all consumers have access to internet. Further, despite state efforts, only Congress maintains the power to regulate the internet.”

Broadband for America’s campaign to block this legislative maneuver actually helps net neutrality opponents.

Since no phone or cable company in the country is seeking to block, throttle, or discriminate against certain websites, passing a law that prohibits this is not controversial. But BfA does not mention other, more threatening practices ISPs have toyed with in recent years that would be banned by robust net neutrality rules. At the top of the list is “paid fast lanes,” allowing preferred content partners to get preferential treatment on sometimes clogged internet pipes. As past controversies between Netflix and Google over interconnection agreements illustrate, if an internet provider refuses to continually upgrade traffic pipelines, all traffic can suffer. With paid prioritization, some traffic will suffer even more because of preferential treatment given to sponsored traffic. The industry does not call this throttling, and some ISPs have blamed content providers for the problem, suggesting Netflix and YouTube traffic unfairly takes a toll on their networks.

BfA also objects to state efforts to bring back net neutrality, claiming such regulatory powers only belong in the hands of the federal government (especially the current one). It is no coincidence BfA’s beliefs and policies mirror their benefactors. While claiming to represent the interests of consumers, BfA is almost entirely funded by: AT&T, CenturyLink, Charter, CTIA – The Wireless Association, Comcast, Cox, NCTA – The Internet & Television Association, Telecommunications Industry Association (TIA), and USTelecom-The Broadband Association. The only major American telecom company not on this list is Verizon, but their interests are represented by USTelecom, an industry-funded lobbying group that backs America’s top telephone companies.

Broadband for America shares a list of some of its members — all a part of the cable, wireless, and telephone industry.

Under the guise of the midterm elections, BfA issued a new call for federal legislation enforcing the telecom industry’s definition of net neutrality, and not just on telecom companies. BfA also wants regulation of “edge providers,” a wonky term that means any website, web service, web application, online content hosting or online content delivery service that customers access over the internet. In reality, the only edge providers the industry is concerned with are Apple, Amazon, Google, Microsoft, and Facebook — companies that often directly compete against telecom company-backed content ventures and lucrative online advertising. Ironically, many Republicans that have strongly argued for deregulation have supported imposing new laws and regulatory oversight on some of these companies — notably Google and Facebook. Amazon joined the list as a result of President Trump’s ongoing feud with Jeff Bezos, Amazon’s CEO and owner of the Washington Post.

Backing the BfA’s lobbying push for a new net neutrality law are results from a suspect BfA-commissioned (and paid for) study by a polling firm that claims “87 percent of voters ‘react positively to arguments for a new legislative approach that sets one clear set of rules to protect consumer privacy that applies to all internet companies, websites, devices and applications.’” A full copy of the study, the exact questions asked during polling, and more information about the sampling process was not available to review. Instead, the conclusions were posted as an opinion piece by Inside Sources, a website that provides D.C. strategy, public relations, and lobbying firms with a free home to publish OpEds on behalf of their clients. Newspapers are allowed to reprint Inside Sources wire service content for free, sometimes without full disclosure of the financial arrangements behind the studies or author(s) involved.

The BfA campaign for a federal net neutrality law is not in isolation. The telecom industry has been on an all-out push for a new net neutrality law since Ajit Pai led the campaign to repeal the FCC rules. The industry’s campaign for pseudo-net neutrality has even won over some in the media like the editorial board of the Washington Post, that published its own OpEd in early October calling Wheeler’s use of Title II authority a regulatory overreach. The Post also has no patience for lawsuits being filed by telecom companies and the Justice Department against the state of California after passing its own statewide net neutrality law. The industry pushback in court is part of the Post’s argument for a new national law to ‘end confusion’:

The fight over net neutrality today can be reduced to a single sentence: Everyone is suing everyone else. Congress should step in.

The Justice Department said Sunday it will take California to court over its law requiring Internet service providers to treat all traffic equally. Those ISPs were already primed to sue states on their own. And California is one of more than 20 states suing the Federal Communications Commission over its repeal of the Obama administration’s rules. “We’re not out to protect the robber barons. We want to protect the people,” California Attorney General Xavier Becerra (D) told us.

The FCC abdicated its responsibility on net neutrality when it repealed the old rules with no adequate replacement. Now, without setting forth its own rules, the federal government is seeking to block states from creating their own. That may be frustrating to Americans who want an Internet where providers do not dictate what information reaches them and how fast. But a nationwide framework governing net neutrality would be preferable to a patchwork of state regulations establishing local regimes for systems that transcend borders. And creating that framework is up to Congress.

But not all are confused. California resident Bob Jacobson defended his state’s interests in a rebuttal to the Post’s editorial:

Absurd reasoning emanating from the nation’s capital of corruption, Washington, DC. California has always led the nation — including the Federal government — in the sensible, productive regulation and consequent growth of its telecom and information economy, now the world’s largest. The Moore Universal Telecom Services Act, passed in reaction to the breakup of the old AT&T, is still the nation’s only comprehensive, progressive telecom policy, its success reflected in California’s robust technological and social infrastructure. Rather than supersede California’s policies, our national and other state legislature’s and regulatory agencies should learn from and adapt them to better serve equally all the American people. (And get rid of that mockery known as the Trump FCC.)

Charter Settlement Talks With New York Officials Proving Fruitful; Spectrum Likely Staying

Charter Communications’ ongoing settlement talks with the New York Public Service Commission are “productive” and will likely result in a final settlement agreement allowing Spectrum to continue operating in New York.

Today, the Public Service Commission formally approved a third extension for Charter, allowing the cable company to hold off filing an orderly exit plan and an appeal of the order revoking approval of Charter’s acquisition of Time Warner Cable in New York State. Department of Public Service (DPS) staff recommended one last 45-day extension to allow settlement discussions to continue and conclude.

“These discussions have been productive and should continue. However, DPS Staff believes that the Commission should direct that any request granted in response to Charter’s most recent filing be final in form and that any additional time allowed must either result in a settlement agreement being presented to the Commission or the cessation of settlement talks and a resumption of the processes outlined in the Revocation and Compliance Orders, unless good cause is shown by both parties,” wrote John J. Sipos, acting general counsel for the Public Service Commission. “This will ensure that progress is made or that in the event a settlement is not reached, that there is certainty as to the expectations on the parties going forward.”

DPS staff identified nine principles guiding discussions towards a final settlement:

  1. All addresses that are counted toward Charter’s obligations must further the Commission’s statements that service be provided to those in less densely populated areas (i.e., Upstate N.Y.).
  2. Addresses counted toward Charter’s obligations must not have had network previously passing the address or high speed broadband service available from a competitor. As the Commission has previously noted, New York City is one of the most wired cities in America, with much of the City served by multiple providers. Thus, the focus of the buildout should be in Upstate N.Y.
  3. Overlap between Charter’s proposed buildout Upstate and those areas awarded by the Broadband Program Office should be minimized or eliminated to the maximum extent practicable.
  4. The goal of DPS Staff and New York State is to ensure that the maximum number of New York State residents have wireline cable and broadband networks available to them.
  5. Charter’s violations of the January 8, 2016 order and September 2017 Settlement Agreement must be addressed.
  6. Going forward, the scope of changes allowed to be made to the buildout plan should be limited in order to provide certainty to New Yorkers as to when Charter’s network will pass their homes and businesses.
  7. Safety is of paramount importance to New York State and that, regardless of any targets agreed to, all work must be done safely.
  8. Company representations regarding the buildout and compliance with PSC orders must be truthful.
  9. The buildout schedule must establish concrete and enforceable consequences should Charter fail to meet its obligations.

Because the ongoing discussions have been conducted in private, without input from interested third parties (including Stop the Cap!) and the public, the revelation of the “nine principles” are the first indication the public has that the Commission’s staff has limited the scope of its negotiations to the rural broadband buildout obligation contained in the original merger approval order. This also coincides with Gov. Andrew Cuomo’s high-profile commitment to expand broadband availability to every New York resident, one of the achievements the governor cites in his re-election campaign. Charter’s participation is essential to the program achieving its objectives, because rural broadband funding has been diverted to addresses not identified as targets for Charter’s rural broadband buildout.

Gov. Andrew Cuomo announcing rural broadband initiatives in New York.

Charter ran into trouble with the Commission because it failed to initially meet its buildout targets for 2017 and progress further faltered in 2018. The Commission argues Charter attempted to mask the problem by counting new passings in urban areas towards its broadband expansion commitment, including many addresses in the New York City area. When Charter balked at the Commission’s broad disqualification of Charter’s progress reports, many that included locations outside the intended goal of the rural expansion effort, the PSC hastily met in July and revoked approval of the original merger agreement, directly threatening Charter’s ability to provide Spectrum service in the state.

A vocal group of consumers among the 78,000 rural New Yorkers without access to cable, DSL, fiber, or wireless broadband are also calling out the governor and the Broadband Program Office (BPO) for bait and switch rural broadband. They accuse the governor of promising to get broadband service to every New York home or business that wants it, but quietly capitulating on that commitment by assigning tens of thousands of rural New Yorkers satellite internet service from HughesNet, widely criticized for not consistently meeting broadband speed standards and offering heavily usage capped service at very high prices.

Because the DPS has set a goal to minimize overlap of Charter’s planned expansion areas with addresses designated for BPO-funded HughesNet service, the Commission will indefinitely prevent satellite customers from getting other practical internet options, because many of these locations are high-cost service areas. Stop the Cap! urged the Commission to consider requiring Charter to further expand its rural broadband commitment as a penalty for earlier transgressions, specifically targeting as many satellite-designated addresses as practical, even if HughesNet has already received BPO funding to serve those locations.

Dampier

“The commitment should be to protect the interests of the public, not the assigned provider,” said Phillip Dampier, director and founder of Stop the Cap! “The Commission’s goal to maximize the number of New York addresses where wireline cable and broadband networks are available is laudable. But this goal is immediately abandoned in areas designated for satellite service. Satellite internet access has rarely, if ever, been considered by broadband regulators to be a suitable replacement for wired internet access. Satellite internet access has proven again and again to be a frustrating and inadequate broadband solution.”

“We are talking about a very small percentage of places where overlapped funding may occur, potentially giving these rural New Yorkers two options for internet access instead of one,” Dampier added. “There is no conflict with the public interest if it means these customers have the option of a much faster, unlimited internet access plan — something HughesNet does not and will not offer in the foreseeable future.”

Stop the Cap! argues without a better option for residents stuck with satellite, the governor has broken his promise and commitment to these left-behind New Yorkers.

“In many cases, these addresses are literally just down the road from the nearest Spectrum customer,” Dampier noted. “Niagara County, for example, is hardly in the middle of the Adirondacks and is heavily wired by Spectrum/Time Warner Cable already. Is it too much to ask to push them to do more?”

John B. Rhodes, chairman of the New York Public Service Commission, signed an order granting the extension, but acknowledged the lack of broadband service in counties where Spectrum offers service to some residents but not others is a point of contention.

“Many Upstate New Yorkers living in Charter’s franchise areas are understandably frustrated by the lack of modern communications infrastructure,” Rhodes wrote. “The Compliance and Revocation Orders [revoking the merger] were designed to deal with very serious issues presented by Charter’s conduct related to the company’s network expansion. As such, the processes envisioned therein must continue in the absence of an agreement.”

Frontier Boost Speeds in Fiber Markets While Its DSL Customers Suffer

Frontier can boost speeds on its acquired fiber to the home networks, which offer almost unlimited capacity upgrades.

Frontier Communications is America’s feast or famine broadband provider, today announcing speed upgrades for its acquired Frontier FiOS and Vantage Fiber service areas while the company continues to pile up hundreds of complaints about poor quality DSL service in the northern U.S. where fiber upgrades are unlikely to ever happen.

Frontier today announced gigabit service (1,000/1,000 Mbps) is now available in its FiOS (California, Texas, Florida, and parts of the Pacific Northwest and Indiana) and Vantage Fiber (primarily Connecticut) service areas. The company also unveiled new plans offering 200/200 and 300/300 Mbps speed options in Indiana, Oregon, and Washington.

“Frontier is pleased to now offer a 200/200 Mbps service, the fastest, most efficient introductory broadband service available in our markets, plus eye-popping speed and capacity with our FiOS Gigabit for the home,” said John Maduri, executive vice president and chief customer officer at Frontier Communications. “Speed and reliability are hallmarks of FiOS Fiber broadband service. Two-way speeds over our all-fiber network make Internet tasks faster and more efficient, regardless of the time of day, while also enabling the many connected devices and streaming services in the home to work simultaneously and smoothly.”

Frontier’s fiber networks are only found in certain regions of the country, including 1.4 million homes in the Tampa Bay/six-county region along the central west coast of Florida, parts of Southern California, Dallas, and individual communities in Indiana, Oregon, and Washington that used to be served by Verizon.

Frontier’s Vantage Fiber network was largely acquired from AT&T’s U-verse service area in Connecticut, with more recent limited rollouts in North Carolina and Minnesota. Life for the unfibered masses in the rest of Minnesota is less sunny, with nearly 500 complaints against Frontier filed by frustrated consumers stuck with a company they feel has forgotten about them.

City Pages notes no company affirms the notoriety of a bad phone company like Frontier Communications, which still relies on a deteriorating copper wire network in most of its original (a/k/a “legacy”) service areas. Complaints about mediocre internet access, missing in action repair crews, and Soviet era-like delays to get landline service installed are as common as country roads.

City Pages:

The grievances read like a cannonade of frustration. They speak of no-show repairmen. Endless waits on hold. Charges for services never rendered. Outages that last for days.

“I have never dealt with a more incompetent company than Frontier,” writes one customer on Google Reviews. “I have no other choice for internet or phone service in my area…. It took me over three months just for Frontier to get to my house to even connect my service…. They also canceled multiple times for installation without calling. They just didn’t show up.”

These maladies aren’t exclusive to the outbacks. They also extend to Watertown Township, in the exurbs of Carver County.

“Frontier Communications is my only option for internet,” Kathleen McCann wrote state regulators. “My internet service is worse than dial-up…. As a dentist, I am not able to email dental X-rays. It took me 47 minutes to upload one small photo to Facebook recently.”

Frontier vice president Javier Mendoza at least admits most rural Minnesotans will be waiting for upgrades forever.

“The economic reality is that upgrading broadband infrastructure in the more rural parts of the state is not economically viable,” he says.

That leaves customers hoping some other entity will step up and serve the critical digital needs of one of America’s most important agricultural states. If not, the future is dismal.

“Those people are screwed,” Christopher Mitchell of the Institute of Local Self-Reliance, a Minneapolis nonprofit, tells the newspaper. “People who make business or real estate decisions are not going to move to that area.”

With that bleak assessment, several rural Minnesota communities are doing something remarkable — building their own public broadband networks. Even more surprising is that many of those towns are led by hardcore Republican local governments that have very different views about municipal broadband than the national party.

Life is rougher for Frontier’s legacy customers that depend on the company’s decades-old copper wire networks.

Some have joked they could change the mind of big city Republicans that are openly hostile to the concept of public broadband by making them spend two weeks without adequate internet access.

In the Minnesota backcountry, in the heart of Trumpland, broadband is about as bipartisan an issue you can find. Ten cities and 17 townships in Renville and Sibley counties went all-out socialist for suitable, super high-speed fiber optic broadband. RS Fiber, the resulting co-op, delivers superior internet access with fewer complaints than the big phone and cable companies offer in Minneapolis-St. Paul.

Public broadband is no more a “big government” takeover than municipal co-ops were when they were formed to bring electric and phone service to rural farms during the days of FDR. Waiting for investor-owned utilities to find adequate profits before breaking ground came second to meeting the public need for reliable power and phone service.

Today, part of that need is still there, even with an incumbent phone company delivering something resembling service. Frontier DSL is internet access that time forgot, with customers comparing it to the days of dial-up. Speed tests often fail to break 1 Mbps. Cable companies won’t come anywhere near most of these communities, many inconveniently located between nothing and nowhere.

As long as Frontier remains “checked out” with make-due internet access, rural Minnesota won’t ever benefit from the kinds of fiber fast speeds Frontier is promoting on the fiber networks that other companies originally built. Frontier is not in the business of constructing large-scale fiber networks itself. It prefers to acquire them after they are built. That makes Frontier customers in legacy service areas still served with copper envious of the kind of speeds available in California, Texas, and Florida.

Investors continue to pressure Frontier to reduce spending and pay down its debts, piled up largely on the huge acquisitions of Verizon and AT&T landline customers Frontier effectively put on its corporate credit card. For Wall Street, the combination of debt repayments and necessary upgrade expenses are bad news for Frontier’s stock. The company already discontinued its all-important dividend, used for years to lure investors. A growing number of analysts suspect Frontier will face bankruptcy reorganization in the next five years, if only to restructure or walk away from its staggering debts.

Fuming Spectrum Customers in Queens Spend an Hour on Hold to Report Multi-Day Outages

Ralph Romano is still on hold with Charter Spectrum, waiting to report an outage that began late Sunday evening in his apartment in the Jamaica, Queens neighborhood.

“You sit on hold for an hour and then the call disconnects, which is exactly the kind of treatment you know you are going to get from this shabby operation,” an angry Romano tells Stop the Cap! “I am 72 years old and ran my own business for 46 years. If I treated my customers the way this cable company does, I would have been out of business in 4-6 months. I don’t know how they did it but Spectrum is even worse than Time Warner Cable.”

Romano is one of dozens of customers reportedly experiencing a multi-day outage in Queens. For some, the outage takes out phone, internet and television service but for others, internet service is the worst affected.

Romano’s neighbor gave up on wasting her cell phone minutes on hold to report the outage. She took a taxi to the Spectrum Store in Elmhurst and then waited over 90 minutes before someone called on her.

NYC rats are not to be trifled with. This one is taking a slice home on the subway.

“I just wanted to report the outage, not turn in equipment or pay a bill, but the door greeter could care less,” Sandra e-mailed us. “They want your name and then they can’t be bothered. I watched people come in after me get called up to pay their bill, sometimes with a sack of change spilled out on the table that took 15 minutes to count. It was infuriating. When they finally called me, I was helped by Mr. ‘I Don’t Care’ who wanted my account information, then said my cable box appeared to be fine. He never tested the internet modem, which is where the problem was. When I told him the whole building was out, he said he couldn’t take reports about other people and they would have to come down themselves to report the trouble. He gave me a $5 credit for service we still don’t have back. Useless.”

“We have a lot of elderly people in this building so they are not going to run down to Spectrum and wait for hours to report a problem that could be discussed over the phone,” Romano said.

Like several other buildings in Queens, there are no immediate alternatives. Although Verizon claims FiOS is available to the building where Romano lives, the only neighbor who ordered it waited two months for engineering work and then had his order summarily canceled without explanation. The building owner warned FiOS is not available because Verizon was unwilling to place its incoming cables in the appropriate conduit, which is rat-resistant.

“The rats around here eat anything, especially cables,” Romano said. “Everyone seems to know that except Verizon.”

Over in Kew Gardens, intermittent internet access from Spectrum is often a fact of life.

Espinal

“When it rains, the internet is gone,” says Ana López. “You might get 15 minutes worth of use, but then the cable modem light starts blinking and the service is just gone. We have called them at least 10 times, and the riff-raff they send out here couldn’t find their rear end with their hands. Since the strike, the people who knew what they were doing must be on the picket lines because the guys taking their place are scary stupid. One suddenly decided to replace some inside wiring, but he ended up ripping the cable out of the wall by mistake and tore up the plaster. One thing they did make sure to do was laugh when they cut the old Verizon (FiOS) cable the old tenants must have used and then let it fall inside the wall. The other guy accidentally dropped one of his tools into my aquarium.”

López has repeatedly told them the problem has to be outside because it does not rain inside her home, but the latest contractor she dealt with confided he doesn’t climb poles unless absolutely necessary because “he is afraid of heights. ¡Dios mío! I am not lying to you.”

Unsurprisingly, the technicians did not fix the problem. As the problems in Queens mount, Rafael Espinal, chairman of the Committee on Consumer Affairs and Business Licensing in the New York City Council, has set up his own website to take complaints about Charter Spectrum across the city. “FixMyCableNow.com” does not appear to forward complaints on to Spectrum, but angry and dissatisfied customers can get more responsive service for unresolved problems by filing an online complaint with the N.Y. Attorney General’s office.

New Zealand Court Rules Neighbors May Be Forced to Trim Trees Interfering With Wireless Internet

Property owners in New Zealand may have to trim back or remove trees if they are proven to interfere with Wi-Fi or wireless broadband services in the neighborhood, according to an interesting High Court judgment that could establish a wide-ranging precedent.

As short-range 5G wireless internet services become established, high frequency and millimeter wave-based signals depend on line-of-sight communications with end users. Trees and buildings can reduce signal range or block the signal entirely, rendering the service unusable. In this case, an appeals judge was asked to rule whether broadband users or property owners took precedence when a large stand of trees or a building in an adjacent yard made wireless reception more difficult or impossible.

Justice Sally Fitzgerald found that when alternative solutions like relocating a receiver cannot be found to mitigate reception problems, nearby property owners may have to take steps to protect neighbors’ access to Wi-Fi and other wireless services, under a new interpretation of Section 335(1)(vi) of the [Property Law] Act of New Zealand. Similar laws are in place in North America and European countries.

The decision could result in a dramatic increase in legal challenges from frustrated neighbors who cannot get good reception because adjacent property owners prefer a tree-filled landscape.

Justice Fitzgerald

Fitzgerald based her decision on basic property laws that make illegal anything that can unduly interfere with the reasonable use and enjoyment of private property. Such laws are used as a basis for noise ordinances, zoning restrictions, restrictions on commercial use of residential property, and placement of structures on or near property lines. This judge found no special distinction between physical objects or noise and wireless transmissions. But she did find reasonable limitations on what would constitute a valid complaint.

In this case, Ian and Karen Vickery brought the complaint against their neighbor Christine Thoroughgood, for interfering with their access to wireless internet by refusing to trim the trees on her property line. But the judge found a better answer than ordering a robust tree trimming. Fitzgerald found the Vickery’s already receive a suitable signal after placing a receiver on a pole located away from their home. Therefore, the judge ruled against the complaint by the Kiapara Flats couple, even though they preferred placing the receiver on their home.

Legal observers found the case precedent-setting, despite its low-key outcome, because this High Court judge has established a right of access to broadband that takes precedence over property owners’ landscaping and buildings. Under certain circumstances, a neighbor may be forced to trim, remove, or alter trees and structures on their land if a neighbor can prove it directly interferes with their right to access wireless signals like broadband in a way that cannot be mitigated.

From the decision:

I am satisfied, and Mr. Allan properly accepted, that undue interference with a Wi-Fi signal caused by trees could constitute an undue interference with the reasonable use and enjoyment of an applicant’s land for the purposes of s 335(1)(vi) of the Act.

From reviewing the evidence, however, I do not agree that the Judge erred in accepting independent expert evidence (in fact called by Mr. Vickery) which objectively contradicted Mr. Vickery’s personal evidence on the issue as to Wi-Fi signal.

The expert, Mr. Lancaster, explained that Mr. Vickery’s Wi-Fi service is a “fixed wireless solution”. He notes in his technical report that it works by having the internet service provider establishing a “broadcast site” in a prominent location and connecting to customers with clear “line of sight” to that broadcast site.

In this case, the broadcast site (provided by Compass Wireless) is located on Moirs Hill Road. Mr. Lancaster notes that “nominally the solution will service customers up to 30 kilometres away from the broadcast site subject to a clear unobstructed line of sight.” In this way, Mr. Lancaster confirms that trees could obstruct the otherwise clear line of sight.

At present, the Wi-Fi transponder (or receiver) at the Vickerys’ home is mounted on a pole a little distance away from the rear of the house. I viewed its location during my site visit and have reviewed the photographs in Mr. Lancaster’s report. With the transponder located in its present position (referred to by Mr. Lancaster as “Location A”), Mr. Lancaster states:

There is currently a clear signal to the installed dish and other parts of the property, the signal has remained good for the past two years since installation.

This current location, however, is not Mr. Vickery’s preferred location. He notes that the present location is in a particularly windy site and on one occasion the wind was so strong it blew the cable out of the back of the aerial. Mr. Vickery also noted that another much larger stand of pine trees on the Thoroughgoods’ land, some considerable distance away, are also impacting what is referred to as the “Fresnel zone” of the Wi-Fi connection in its present location.

Mr. Vickery’s preferred location is closer to and attached to the back of the house itself, where it would be easier for Mr. Vickery to service the transponder. At this location however, Mr. Vickery says the trees in issue will interfere with the signal.

Mr. Lancaster states in his report that he spent over two hours on site and only identified two other locations (other than the present location, Location A) which he would consider appropriate for an installation.

The first of these alternative locations (Location B) is on the northeast corner wall of the home — Mr. Vickery’s preferred location. Mr. Lancaster states “this is the location the Compass installers would have chosen by default and as a standard installation”. In relation to Location B, Mr. Lancaster states “it is obviously at risk due to close proximity to the existing tree/shrub planted boundary, being approximately three metres above ground level.” He states that to retain adequate signal at this location, a window would be required in the shelter belt hedge — the trees in issue in this case.

In light of the independent expert evidence, I do not accept the Judge erred in concluding there was no undue interference with the Vickerys’ Wi-Fi signal. It is important to reiterate that not only does the expert evidence not indicate an interference, but the standard required by the legislation is an “undue” interference in any event. The expert evidence confirms this threshold has not been met.

Accordingly, while it is true that Mr. Vickery’s preferred location for the Wi-Fi transponder would be on the wall of the home, there is clearly an alternative location which is currently being used and which is considered by Mr. Lancaster to be adequate. There is also a further alternative and adequate location (Location C). And although this location would require cabling, this would not in my view be unreasonable in the circumstances.

I accordingly do not consider the ground of appeal concerning Wi-Fi has been made out.

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