NEW YORK (Reuters) – Executives from Sprint Corp testified on Monday that the U.S. wireless carrier has struggled to improve its network, hindering its growth and underscoring the need to merge with larger rival T-Mobile US Inc.

U.S. state attorneys general, led by New York and California, are suing to stop the merger.

The states seek to prove in Manhattan federal court that the deal between the No. 3 and No. 4 wireless carriers would raise prices, particularly for users on prepaid plans. The state attorneys general, all Democrats, asked Judge Victor Marrero to order the companies to abandon the deal.

Sprint Chief Marketing Officer Roger Solé testified that the company’s strategy for enticing customers from competitors included slashing prices.

But he said the promotion’s “early success faded away pretty soon” due to customers having a negative experience with Sprint’s network quality.

In an effort to show how competition lowered prices, the states presented evidence that when Sprint introduced an aggressive promotion in 2016 to offer phone plans comparable to those of Verizon, AT&T and T-Mobile, T-Mobile’s MetroPCS prepaid brand immediately lowered prices on its plans.

The evidence is central to the states’ argument that Sprint and T-Mobile as standalone companies force competition between carriers, providing the best deal for consumers.

Solé

Lawyers for the states also presented evidence suggesting Sprint wanted a deal so more money could be earned from each customer.

In WhatsApp messages from 2017 between Solé and Marcelo Claure, who was then CEO of Sprint, Solé suggested a merger with T-Mobile could raise Sprint’s average revenue per user by $5.

In his deposition before the trial, Solé said he was simply offering a thought that price increases could happen “very far down the road.”

The companies argue that the stronger T-Mobile that would result from the proposed $26.5 billion takeover would be better able to innovate and compete to reduce wireless prices. The case represents a break with the usual process of states coordinating with the federal government in reviewing mergers and generally coming to a joint conclusion.

The deal had been contemplated in 2014 during the Obama administration, but the Justice Department and Federal Communications Commission urged the companies to drop it, which they did.

The Trump administration signed off on it after the companies agreed to sell Sprint’s prepaid businesses, popular with people with poor credit, to satellite television company Dish Network Corp.

But setting up DISH as a wireless carrier is “patently insufficient to mitigate the merger’s competitive harm,” the states argued in a court filing.

Deutsche Telekom CEO Timotheus Höttges, whose company is the largest shareholder of T-Mobile, will testify on Tuesday.

Reporting by Diane Bartz and Sheila Dang; Additional reporting by Brendan Pierson; Editing by Daniel Wallis, Nick Zieminski and Dan Grebler

China is outpacing the U.S. in fiber broadband expansion. (Image: Broadband Now)

At least 86% of China now has access to fiber broadband connectivity after six years of aggressive fiber optic network expansion, putting the United States at a significant disadvantage.

Only 25% of the United States is served by fiber service, creating a giant digital divide that leaves most Americans without fiber high speed broadband. That is the finding of Broadband Now, which summarized the results of its investigation in an article published this week, blaming the country’s reliance on deregulated monopoly/duopoly telecom companies for much of the problem.

“While America continues to suffer from an immense digital divide, China’s government has made incredible progress building out a state-sponsored super network of fiber optic connections. This infrastructure will allow the country to take early advantage of some of the most impactful applications resulting from the fourth industrial revolution,” Broadband Now reports.

Chinese state policy has emphasized the importance of deploying modern telecommunications networks, including fiber-to-the-home and 5G wireless service. The Chinese central government is spending billions to build a core public broadband network, which providers can lease to offer service to their customers. U.S. providers rely on private investment that depends on a financial formula to determine if fiber upgrades will deliver a competitive advantage or a potential for robust profits.

Broadband Now notes that most U.S. providers face little significant competition — “a difficult proposition to justify installing robust fiber networks, especially in less populous areas of the U.S.”

The “return on investment” formula is also responsible for the lack of rural broadband access, a problem the Chinese government solved by directly subsidizing the construction of fiber networks across the country, deeming high speed connectivity a national priority. As a result, 96% of rural Chinese villages now have access to fast internet service.

Broadband Now advocates for more aggressive fiber broadband deployment in the United States, including policies that promote fiber expansion and reduce deployment costs. For example, Broadband Now believes that a national “dig once” policy that would require fiber optic conduit to be installed wherever roadway projects are undertaken could allow providers quick and inexpensive access to deploy fiber technology. The group estimates that nationwide fiber expansion costs could be reduced from $140 billion to $14 billion if dig once policies were the national standard.

Chinese fiber deployment has already laid a foundation for China to outpace the United States in the race to deploy 5G wireless networks. Fiber connections are required to power gigabit speed small cells integral to millimeter wave 5G services. With China well ahead of the U.S. in fiber deployment, the country is poised to rapidly expand 5G wireless service.

Pai

After significant lobbying by the cable industry, FCC Chairman Ajit Pai made a decision to propose splitting up the 5.9 GHz so-called Vehicle-to-Vehicle (V2V) band to open up 45 MHz for unlicensed Wi-Fi services and leave 30 MHz reserved for emerging crash avoidance technology that will allow cars to communicate with each other to reduce accidents.

Pai has been frustrated by the slow development of intelligent vehicle communications, especially as different competing technologies appear to have delayed deployment as carmakers ponder a technology shift. Pai’s proposal would allow auto manufacturers to debate what kind of spectrum division might be appropriate within the remaining band if different technologies are eventually deployed. But Pai would also quickly move to open up much of the rest of the band for cable industry and consumer Wi-Fi services.

“My proposal would do far more for both automotive safety and Wi-Fi than the status quo,” Pai said, noting he was adding his proposal for FCC consideration at a meeting on Dec. 12.

The cable industry, through its national lobbying group NCTA-The Internet & Television Association, quickly applauded Pai’s proposal, which nearly mirrors the plan recommended by the nation’s biggest cable companies.

“We applaud Chairman Pai’s announcement today that the Commission intends to move forward in considering a new plan for 5.9 GHz spectrum band that will chart a constructive path forward in putting these frequencies to better use for consumers,” said NCTA President Michael Powell. “The Chairman’s proposal will enable the fastest gigabit Wi-Fi speeds in America, ensuring that Wi-Fi can keep pace with growing consumer demand and the deployment of next-generation wireless broadband technologies. We also thank Commissioners O’Rielly and Rosenworcel for their tireless efforts in support of unlicensed spectrum, especially enabling Wi-Fi in the 5.9 GHz band.”

Cable operators including Charter and Comcast want to deploy a large network of Wi-Fi hotspots in the new band to support their growing mobile service operations. Both stand to save substantially by offloading network traffic to their own wireless networks instead of relying on Verizon Wireless, which is contracted to provide 4G LTE service.

Consumers will eventually also be able to purchase in-home routers that will support the new 5.9 GHz band, if Pai’s proposal is approved. The new Wi-Fi band, located between 5.85-5.895 GHz is adjacent to the existing 5.9 GHz Wi-Fi band in the United States (5.725-5.850 GHz)

Expanding available Wi-Fi spectrum may help consumers get faster wireless connections, especially in areas where signal congestion from other users is significant. Some proponents suggest that the new band could allow consumers to experience near-gigabit Wi-Fi speeds, but that will largely be dependent on the equipment used, one’s distance from a Wi-Fi hotspot, and any prevailing wireless traffic congestion.

Rep. Brindisi

The House of Representatives is showing little love for freshman Rep. Anthony Brindisi’s “Transparency for Cable Consumers Act” (H.R. 1555), a bill that would strengthen consumer protection by targeting the cable industry’s business practices.

The Utica, N.Y. Democrat made Charter Spectrum a significant part of his 2018 campaign, criticizing the cable company in television election ads Spectrum initially refused to air and calling for New York regulators to punish or remove the cable company from the state after failing to meet its 2016 merger obligations.

Brindisi’s bill would increase regulatory oversight of cable operators nationwide, requiring the Federal Communications Commission, Department of Justice, and Federal Trade Commission to do more to protect cable internet subscribers. H.R. 1555 would:

• Detail actions to protect consumers from predatory actions by cable and internet companies, which includes debt collection methods;
• Asks the FCC to propose appropriate regulatory consequences for cable or internet companies fined by a state public utility commission, like Charter Communications was in New York;
• Establishes a working group among the three federal agencies to investigate rising cable internet rates.

Brindisi considers America’s cable industry “predatory” and abusive to its customers. He cites constituent complaints about Spectrum’s debt collection practices as a primary example of that abuse in action.

“Constituents have reported to me Spectrum’s ties to a debt collection company called Credit Management, LP. Spectrum allegedly uses the Plano, Texas, company — whose leadership team is tethered to the cable industry — to collect debts often unrelated to standard non-payment, and instead tied to Spectrum ‘equipment,’ Brindisi alleges. “I urge anyone being harassed by Credit Management, LP, on behalf of Spectrum, to call my office.”

Brindisi is also attacking the recent policy change by Spectrum to stop providing pro-rated refunds when customers cancel service in the middle of a billing cycle.

“Well, Spectrum just raised our rates again, adding insult to injury. And let me tell you something, they are laughing all the way to the bank. Quite literally,” Brindisi added. “Wall Street shares of Charter Communications climbed about 14 percent higher last month thanks, in part, to a ‘boost from higher prices.'”

Brindisi claims lobbyists prowling the halls of Congress have labeled him “The Cable Guy” because of his focus on the cable industry.

“Look, it’s no secret. Spectrum Charter hates me. But what’s more offending, really, is that they think I’ll be quiet,” Brindisi said. “The legislative branch, of which I am included, is one partner in the fight but we need the administration to empower its agencies and regulators to come down hard on Spectrum when they take advantage of us. Right now, I do not see it happening. Instead, I see industry smiling ear-to-ear while it courts — and ‘pays’ — members of Congress to do its bidding.”

Brindisi’s bill has only a slim chance of passage as a standalone measure, so he is attempting to attach it as an amendment to the federal budget, a popular tactic among lawmakers that struggle to get their bills to the floor for individual consideration. Opponents are likely to claim that the measure is unnecessary, redundant, and in conflict with the current administration’s deregulation policies. The bill will need a stronger publicity push to attract constituent support that will be noticed by House lawmakers. Brindisi’s bill has only a single co-sponsor, Rep. Jefferson Van Drew (D-N.J.)

But Brindisi says he is not giving up.

“Well, let me be the first to reiterate: this ‘cable guy’ will not quit until Spectrum blinks, and takes its hand out of your pocket.”

AT&T will pay $60 million to compensate unlimited data customers that found their data speeds throttled without warning because AT&T deemed them ‘heavy users’ that were slowing down AT&T’s wireless network.

“AT&T baited subscribers with promises of unlimited data, trapped them in multi-year contracts with punishing termination fees, and then scammed them by choking off their access unless they moved to a more expensive plan,” claimed FTC Commissioner Rohit Chopra. “The AT&T throttling scandal is an important case study into how dominant firms operating without meaningful competition can easily renege on their contractual obligations and cheat consumers who have almost no recourse.”

The $60 million in compensation is part of a settlement with the Federal Trade Commission that accused the company of false and misleading advertising after marketing an unlimited data plan subject to severe speed reductions after as little as 2 GB of usage. AT&T also agreed to a permanent injunction forbidding the company from advertising unlimited data plans without clear disclosures that such plans were subject to speed throttling. AT&T will have to prominently disclose such limitations in the future and not in the fine print.

“AT&T promised unlimited data—without qualification—and failed to deliver on that promise,” said Andrew Smith, director of the FTC’s Bureau of Consumer Protection. “While it seems obvious, it bears repeating that Internet providers must tell people about any restrictions on the speed or amount of data promised.”

AT&T’s throttling came to light in 2011 after the company was found to be slashing “unlimited data” smartphone users’ speeds to as low as 128 kbps — roughly 2-3 times the speed of dial up data, after a customer reached 2 GB of usage during a billing month. The FTC claims over 3.5 million AT&T customers were subjected to AT&T’s speed throttle as of October 2014 when the federal agency filed a formal complaint against the wireless carrier.

AT&T fought the FTC in and out of court for five years, claiming the FTC had no jurisdiction over its wireless business. The Ninth Circuit U.S. Court of Appeals disagreed in 2018, when it ruled that the FTC did have jurisdiction to pursue its false advertising claims against the company. Observers believed this court ruling forced AT&T to move towards a settlement.

AT&T’s past and current wireless customers targeted for speed throttling will automatically receive compensation without having to file a claim. The settlement provides customers throttled to 128 kbps an equal share of $13.8 million set aside to compensate current and former customers for the loss of value of their unlimited plan, plus interest. Those throttled to 256 or 512 kbps will split $46.2 million. Current customers will be provided a bill credit, former customers will receive a check in the mail, assuming AT&T can locate your current address. Any unclaimed funds will be sent to the FTC and will not be kept by AT&T. Customers can expect refunds within the next 90 days.

Wireless carriers selling “unlimited data” routinely bury restrictions on such plans in their fine print. Most limit customers to between 20-50 GB of usage per month, after which the company reserves the right to dramatically reduce your data speeds until the next billing cycle begins. The FTC is increasingly concerned that advertising unlimited service while burying important restrictions in the fine print is false advertising. The FTC is sending a message to wireless companies it wants hidden disclosures stopped.

The Commission vote approving the stipulated final order was 4-0-1. Commissioner Rebecca Kelly Slaughter was recused.

FTC Commissioner Deepak Chopra issued a scathing statement about how AT&T does business:

Chopra

AT&T’s Nationwide Bait-and-Switch Scam

When any business, big or small, offers an unlimited service for a fixed fee, that business is taking a risk. If customers use much more of the service than projected, the company will take a hit. Conversely, if customers use less than projected, the company will haul in even larger profits. This is how business works.

As detailed in the Commission’s complaint, AT&T wanted the rewards without the risks, so it turned its offer of an “unlimited” data plan into a bait-and-switch scam that victimized millions of Americans.

Subscribers were lured in with promises of unlimited data service for a fixed fee, trapped into multiple years of service by punitive termination fees, and then forced to switch to a more expensive tiered plan with overage fees to actually receive the unlimited data they were promised.

This scam went hand-in-hand with AT&T’s early monopoly in the iPhone market. In 2007, Apple and AT&T inked a major deal that gave purchasers of the iPhone only one choice for a mobile carrier.

Around this time, AT&T faced a major threat to its wireless business: the company was losing exclusivity over the iPhone. Analysts warned that the company could be “demolished,” potentially losing millions of customers to Verizon.

To prevent this from happening, AT&T aimed to lock down existing subscribers into new long-term contracts by “grandfathering” them in to their unlimited plans when they upgraded their phones. Since data usage can be unpredictable and hard to track, an unlimited plan without risk of overage fees created certainty for cost-conscious consumers.

How low can AT&T go? Some wireless customers were throttled to 128 kbps speed after using just 2 GB of data on their AT&T Unlimited Plan.

AT&T is a sophisticated company. It knew it needed to invest in enough capacity to deliver service for subscribers who used a lot of data under their unlimited plans, especially since the company had claimed its network was the “fastest” in the nation.

Instead of living up to its promises, AT&T pulled a bait-and switch.

First, to hold on to customers who might switch to the competition, AT&T marketed an unlimited data plan that was not actually unlimited. AT&T subscribers who signed up for newer phones with unlimited service were likely those who intended to use the most data. Instead, these subscribers were throttled the most, and ended up receiving the slowest, most unreliable data coverage.

According to the FTC’s complaint, roughly 3.5 million customers victimized by AT&T’s fraud saw their speeds go down by up to 95 percent. The iPhone’s internet-intensive functions were practically unusable on AT&T’s network at the diminished speeds. This Swiss-cheese service was not the unlimited deal that was promised. Americans in rural areas without broadband connections, as well as those who depended on the service for their livelihood, got a particularly raw deal.

Second, AT&T made it hard to walk away, trapping subscribers in contract terms. Until 2011, AT&T was the only carrier offering the iPhone and the only network the iPhone worked on. As the exclusive iPhone carrier, AT&T dictated the terms of access, which included signing long-term contracts with big penalties for leaving early. After AT&T lost iPhone exclusivity, new carriers entered the market promising better coverage. But most existing iPhone users were stuck with AT&T until their contracts ran out, unless they paid the expensive early termination fee. And when their contracts did run out, AT&T induced them to renew with false promises of “unlimited” service.

Third, AT&T pushed subscribers into switching to more expensive plans. AT&T allocated the most data and most reliable service to capped data plans with overage fees, while imposing arbitrary limits on subscribers in “unlimited” plans. Unlimited data subscribers who wanted reliable service could pay a big fee to switch carriers, or they could switch for free to a capped data plan with no throttling. While these plans might have been cheaper upfront than the unlimited plan, their low data cap, the high cost of overages, and the expanding capabilities of smartphones made a service price hike inevitable for Americans who wanted what they signed up for. The only truly unlimited data service was therefore available solely through capped plans with expensive overages.

AT&T’s bait-and-switch scam is a good window into the many harms that result from dominant companies operating without the discipline of meaningful competition. Their market power, financial resources, and one-sided information gives them license to ignore their own contractual obligations while aggressively enforcing every little clause in the fine print. Consumers can accept the bad deal, walk away, or fight it, but each choice carries a cost, with dominant firms prevailing almost every time.

In my view, AT&T profited by using its dominance to force customers to keep their end of the deal even as the company failed to deliver and then changed the terms. AT&T’s unlimited data subscribers could have kept paying for limited, unreliable service, paid the penalty to switch to a carrier with better service, or paid a price hike to get the unlimited data service they had been promised. But none of those are good options.

Wireless companies are spending more money on stock buybacks than they are investing in their networks.

AT&T’s broken promises were not inevitable. The company could have upheld its obligations to its customers by making the right infrastructure investments. It certainly had the money to do so. From 2011 to 2015, AT&T paid tens of billions of dollars in dividends and share buybacks. In 2012, as the company boasted to investors that customers were fleeing its unlimited plan for tiered plans, it spent more on share buybacks than it invested in its wireless network. The bottom line is that AT&T fleeced its customers to enrich its executives and its investors.

Scrutiny for Scammers of All Sizes

The FTC sued AT&T in 2014, and an exceptional group of staff litigators racked up big wins in this case. Our staff even prevailed in the Ninth Circuit Court of Appeals, when AT&T tried to sidestep accountability for this massive fraud by claiming it was immune from the FTC’s oversight. I am extremely grateful to our litigators and investigators who persisted, and I am glad to see money being returned to consumers. No settlement is perfect. While I would have liked to see AT&T pay more for the company’s scheme, I fully appreciate the risks and resources associated with litigation.

There are also important lessons from this matter that I hope the entire agency can learn.

Scammers come in all sizes. During my tenure as a commissioner, I have raised concerns about disparate treatment of small firms, where the agency is quick to call out their fraud and where resolutions can include crippling consequences and individual liability. In contrast, the agency is quick to deem large firms as “legitimate” and apply a more soft-touch approach. AT&T’s massive scam is a reminder that we must focus on the practices of a business, rather than the size of a business.

Rigorous analysis yields better results. The Commission must do more to support our litigators and investigators with rigorous analysis of the many ways that companies profit from illegal conduct.

Commission economists typically develop estimates of consumer injury, but this is just one facet of the relief we can seek in court. Economic analysis of consumer injury is not a complete financial analysis, so we must be wary of overly relying on this narrow methodological approach. To arm our litigators effectively, we must conduct rigorous financial analysis that goes beyond the out-of-pocket losses that consumers experience. We also need to ensure we conduct a comprehensive review of a firm’s business model, which can allow us to assess what led to the wrongdoing in order to inform what injunctive relief we should pursue.

It will be critical for the Commission to closely scrutinize AT&T’s moves under order. If the company violates any aspect of this settlement, the agency should seek a contempt judgment in federal court and hold both the company and any appropriate individuals responsible for flouting the order. Given AT&T’s aggressive enforcement of arbitration clauses that ban consumers from taking the company to court, it is critical to be vigilant in our oversight of AT&T under this order.

Conclusion

If consumers don’t pay up when a company fails to live up to its promises, they are often pummeled with late fees, collection calls, and negative credit reporting. Yet when dominant companies don’t deliver on their end of the bargain, too often they can turn a profit, as their customers feel powerless to do anything about it. Cheating is not competing. Without effective government and private enforcement, we will not achieve all of the benefits that competitive markets can deliver.