Opening a lead insulated buried cable. Lead can be resealed with solder after repairs.

In the early to mid-1950’s, thousands of landowners between Houston and Dallas/Ft. Worth, Tex. were asked to grant a right of way and easement to what was then known as the American Telephone & Telegraph Co. (AT&T). After winning permission, AT&T buried a 4-6 inch wide copper telephone cable sheathed in lead to connect the two cities — 200 miles apart — together. Almost 70 years later, that cable is coming back to haunt the phone company.

Telecommunications companies have used copper phone wiring for over 100 years to deliver telegraph, telephone, and data services. AT&T’s “trunk lines” often contained dozens, if not hundreds of individual cable pairs used to connect regional long distance calls and distant central switching offices together. To protect the cables, phone companies relied on simple paper insulation until the mid-1950s to keep the cable pairs from making contact with other wires. Buried cables were traditionally sheathed in lead, a very popular and durable insulator that dependably kept moisture out while allowing technicians easy access to the cables within. As the 1960s approached, phone companies began to switch to plastic insulation, but paper and lead-wrapped copper wiring remains in service in some areas to this day, often in large cities.

As with most AT&T-owned underground cables, the one in Texas was wrapped in lead. The company used a network of subterranean concrete rooms and above ground small cinder block buildings for maintenance, offering technicians direct access to the cable and various network equipment. Landowners knew the additional infrastructure belonged to AT&T because the company placed their logo on it.

Ongoing technological advancements eventually allowed AT&T to transition service to fiber optic cables, and by 2010, the Houston-Dallas copper cable was decommissioned. AT&T employees removed its signage, sold the cinder block structures and abandoned the underground vaults.

But AT&T did not remove the cable, which remains unused and buried to this day, allegedly leaching dangerous lead into the ground. Property owners fearing AT&T’s cable may be fouling the soil and groundwater with lead contamination took AT&T to court in 2016, seeking a class action case against the phone company for abandoning its cable and easements.

AT&T’s Environment, Health, and Safety Division offered a presentation at the 2010 International Telecommunications Safety Conference warning about the perils of old lead-sheathed phone cables, claiming “underground cable presents real possibilities for overexposure to lead:”

• Some older metropolitan areas may still have over 50% lead cable.
• Buried cable leaches many compounds to the surface of the insulation: lead carbonate, lead monoxide, lead sulfate, lead chloride, lead dioxide, lead acetate, lead nitrate, and lead sulfide. Many of these compounds do not adhere tightly to the cable and are easily airborne.
• Once in the soil, 83 and 98 percent of the released lead remains intact in the soil within 2 inches of the cables.

In addition to the cost of removing the unused cable, AT&T’s own safety engineers suggest removing old cables can also pose a significant health risk to employees and property owners if not done properly:

• Extraction of cable from underground duct can release unexpected high levels of lead dust.
• Wetting was not capable of controlling dust in many cases.
• Location of employees to cable extraction is important.

Despite the health risks, a judge denied class certification of the lawsuit on Tuesday, ruling each affected property owner will have to bring a separate lawsuit against AT&T.

U.S. District Judge Alfred H. Bennett issued the 11-page ruling against the claimants.

“Plaintiffs present the general retirement of underground coaxial and fiber optic cables, removal of signage/equipment for those cables, and planned release of some easements as class-wide proof that abandonment is a common question for the proposed class,” Judge Bennett wrote. “However, because the class does not deal with one easement, rather hundreds (if not thousands), each class member would need to present evidence of the definite acts revealing AT&T’s intent to abandon the particular easements associated with that member’s property.”

Bennett was also unpersuaded by claims that the abandoned AT&T cable created a presumption of imminent harm, and his ruling stated each property owner would have to provide evidence of the cable’s lead contamination on that owner’s land. In addition, each claimant would have to prove damages, assuming the statute of limitations had not run out years ago.

“Certainly, a separate soil analysis for each property would have to be present, along with evidence pertinent to determine the existence and cause of any contaminates on each of the properties,” Bennett wrote.

The law firm bringing the lawsuit plans an appeal.

The Federal Communications Commission moved Tuesday to formally strip local franchise authorities from regulating cable companies’ non-video services, prevent town and city governments from enforcing their own net neutrality policies, and limit the amount of obligations cable companies owe communities in return for winning and keeping a cable television franchise agreement.

The Commission announced a notice of proposed rulemaking that most observers claim is a mere formality before the Republican majority formally adopts the proposal in what is being seen as a clear and sweeping victory for the cable television industry.

Under the FCC proposal, local franchising authorities that issue franchise agreements allowing cable television companies to provide service in a community will see their powers of oversight and regulation significantly cut, threatening existing agreements that require cable operators to wire public schools, libraries, and local government offices and offer certain other services, excluding Public, Educational, and Government access channels.

Some franchise agreements require cable operators to maintain a certain number of local cable customer service offices, support local infrastructure projects by placing fiber or service cables in shared conduits, offer services or scholarships to communities in need, and provide near-universal service availability in neighborhoods without regard to income. While communities would be allowed to continue requiring these extra benefits, the cost could be deducted from franchise fee payments made by cable operators to local governments. Currently, franchise fees are capped at a maximum of 5% of gross revenue, although cable companies and corporate-funded interest groups like FreedomWorks and Free State Foundation argue “in kind” required contributions found in some franchise agreements allow cities and towns to exceed that amount.

Cooper

The FCC also reiterated its intention to limit local franchising authorities to only regulating cable television services, disallowing them from writing rules, regulations, or requirements that govern a cable system’s non-television services, most notably telephone and broadband service. While some at the FCC suggest this ruling allows broadband and voice services to remain unregulated as intended, analysts suggest the real impact of this declaration is to lay a legal foundation to prohibit communities from imposing local net neutrality requirements on cable broadband services designed to replace the federal net neutrality rules that were vacated by the Republican majority on the Commission earlier this year.

“Congress has designated information services such as broadband for non-regulated or light-touch treatment,” said Seth Cooper, senior fellow from the conservative group Free State Foundation. “The Commission’s proposed rulemaking clarifies that local governments cannot leverage their cable franchising authority to regulate broadband services. This will help shore up important limits on local government regulation set out in the Communications Act.”

After passage, cable operators could complain to the FCC about requirements imposed by local governments or regulatory bodies requiring them to honor basic net neutrality principles. FCC Chairman Ajit Pai has repeatedly voiced his view that only the federal government should be allowed to regulate the internet, and he is prepared to challenge state and local laws that attempt to create an end run around the decision to eliminate federal net neutrality protections.

“What we’re going to do is take a look on a case-by-case basis at each state law and determine the right course, but at a broad level, the internet is inherently an interstate service,” Pai told CNBC in June. “We don’t [want] every one of the 50 states and however many local jurisdictions to have a bite of the regulatory apple.”

The FCC has also asked for input on extending its authority to overrule similar franchising requirements on the state level as well, a significant expansion of the FCC’s authority that Mr. Pai himself has questioned when his predecessor, Chairman Thomas Wheeler, attempted to override state laws deterring or forbidding public/municipal broadband networks.

“In taking this step, the FCC usurps fundamental aspects of state sovereignty. And it disrupts the balance of power between the federal government and state governments that lies at the core of our constitutional system of government,” Pai complained in 2015. “What is clear, however, is that the FCC does not have the legal authority to override the decisions made by Tennessee and North Carolina. Under the law, it is up to the people of those two states and their elected representatives—not the Commission—to decide whether and to what extent to allow municipalities to operate broadband projects.”

But in Pai’s view, it is not up to those and other states to decide for themselves what type of level playing field will be provided to internet users if a sovereign state wishes to define those terms in the public interest.

FCC’s Ajit Pai talks net neutrality on CNBC in June 2018 and is skeptical of state efforts to preserve net neutrality rules, saying the internet “has to be regulated by the federal government.” (10:48)

Down one big member — Verizon

Verizon has quit the American Legislative Exchange Council (ALEC), a corporate funded alliance between big business and Republican state lawmakers, after right-wing activist David Horowitz used a guest appearance at the 45th ALEC Annual Meeting in New Orleans to launch into a tirade against opponents of President Donald Trump, claiming Democrats are socialists bent on attacking traditional American values.

To rousing applause from many of the 1,500 legislators and lobbyists in attendance, Horowitz used two speeches to attack the LGBTQ community, people of color, public education, feminism, gender equality, and the rights of women to seek independent access to reproductive healthcare.

Specifically, Horowitz claimed public schools are “indoctrination and recruitment centers for the Democratic party and its socialist left” and that “school curricula had been turned over to racist organizations like Black Lives Matter and terrorist organizations like the Muslim Brotherhood.” On a later panel, Horowitz told the audience Trump had not gone far enough attacking his enemies, and defended the president’s remarks calling a woman “a pig.” Those who disagreed were called “communists” by Horowitz.  He also argued the United States could only have been founded by Protestant Christians.

Horowitz speaks at ALEC conference in August 2018.

The incendiary remarks are nothing new for Horowitz, who repeatedly called President Barack Obama “a secret Muslim” and sponsors a website that claims Muslim migrants are carriers of infectious disease and predators with a “violent lust for ‘white’ women.”

Rep. Chris Taylor (D-Wisc.) attends ALEC events often to learn more about what the opposition is doing. Her observations from this year’s conference reflect ALEC in disarray, as the formerly unified, corporate-focused group is becoming more fragmented as emboldened right-wing activists demand a voice at the table.

They want state’s rights, except when they don’t. The same contradiction is evident with their struggle with local control–sometimes they like it, sometimes they don’t. The defining factor is whether these levels of government promote the far-right ALEC agenda. It is getting harder and harder for ALEC to ignore these internal contradictions.

And there are visible cracks in ALEC world. Collectively, this was the messiest and least disciplined ALEC conference I have attended since 2013. In the energy task force, presentations were all over the place. A natural gas and electricity supplier went off script by openly discussing the billions in subsidies the oil and gas industry receives. There was silence in the crowded task force room, filled with fossil fuel producers and lobbyists.

[…] In the Health and Human Services task force, the Goldwater Institute and Buckeye Foundation were in a tizzy because the Affordable Care Act (ACA) was still in existence and the left seemed to win that war, at least for now. How could it be, they moaned, when Republicans are in charge of EVERYTHING? They whined that the “debacle of last year was horrible” and that Congress wouldn’t touch another repeal with a 10-foot poll. So, 100 conservative groups came together to propose an alternative plan that guts the ACA, again. But the list was messy and confusing, and even the presenters seemed doubtful their plan would ever succeed.

But the biggest disaster I have ever seen at an ALEC conference was on a panel about the Convention of States (COS) project. COS is mobilizing in states to call an Article V Constitutional Convention for the purposes of amending the federal constitution by passing a balanced budget amendment, term-limits for federal judges, and who knows what else. One of the key speakers was right-wing provocateur David Horowitz. Horowitz is listed in a Southern Poverty Law Center (SPLC) report published by Alternet with the title “10 of America’s Most Dangerous Hatemongers”.

After converting from being a Marxist decades ago, Horowitz now runs his own right-wing think tank, bankrolled to the tune of $3.4 million by the Milwaukee-based Bradley Foundation, according to the Center for Media and Democracy. Horowitz gained recent fame as a key mentor of Trump advisor Stephen Miller, the man behind Trump’s family separation policy according to the Atlantic.

[…] ALEC is moving into dangerous territory. Despite the formidable infrastructure they have built over 45 years, their control of 33 state legislatures and their hordes of corporate cash that perpetually grease their wheels, the organization seems to be increasingly in disarray and in an identity crisis. While simultaneously distancing themselves from the chaos and corruption of President Trump, the reality is that they need him, and his hate-mongering, to further the foundation of their right-wing agenda–gutting the ACA and federal conservation standards, repealing workers’ rights, pushing down wages and privatizing public education.

And so the Horowitz’s of the world, who ALEC at least publicly has kept at a distance during my tenure, are now becoming part of the ALEC universe. Are ALEC supporters, including their corporate funders, willing to embrace this hate-mongering to continue to advance their corporate agenda?

Horowitz’s brand of politics may be popular with party activists, but corporate ALEC members are more concerned about their public image.

After Horowitz’s appearance, Verizon notified ALEC it was resigning from the group.

“Our company has no tolerance for racist, white supremacist or sexist comment or ideals,” a Verizon spokesperson said in a statement.

It is a severe blow to ALEC, which welcomed Verizon as a dues paying member in 1988, when Verizon lobbyist Ron Scheberle served as chairman of ALEC’s board.

ALEC’s damage control effort came in a statement to the press:

ALEC takes speaker vetting seriously and—in partnership with meeting sponsors—applies a rigorous process to identify speakers on important matters of public policy. Each speaker is apprised of the ALEC policy focus, how to address the audience and what issues not to discuss. ALEC does not work on social issues. Rather it focuses on limited government, free markets and federalism at the intersection of the economy and public policy.

In this case, the speaker was advised of the program parameters and did not abide the process.

Upon learning of concern following the conclusion of remarks, ALEC staff removed the video archive of the livestream and ceased promotion of the speech as the comments were inconsistent with the manner in which speeches are offered at ALEC.

ALEC was launched to give its corporate members and lobbyists direct access to state legislators to shepherd corporate ghost-written bills into state laws or at least heavily influence members’ bills to make them corporate-friendly. In some cases, corporate-written “model bills” were adopted word-for-word by some state legislatures and became law, with the help of Republican support and co-sponsors.

Rep. Taylor

Verizon and other telecom company members like Comcast and AT&T have benefited handsomely from membership in ALEC, successfully pushing through state laws for statewide video franchising, eliminating local control over cable television providers, pole attachment and zoning reform for wireless companies, working to eliminate universal service obligations and regulatory oversight for landline service, state bans on municipal broadband competition, and most recently working to stop states from writing their own net neutrality provisions to replace those lost on the federal level.

ALEC has always maintained close ties to Republicans and its deep pocketed corporate members. But until recently, it has usually shied away from headlining lightning rod social issues out of deference to its controversy-shy corporate members.

Horowitz’s remarks, live-streamed across the internet by ALEC, may have been the final straw for Verizon. In late August, 79 public interest and environmental groups co-signed a letter to ALEC members drawing attention to Horowitz’s remarks and asking companies to leave the group for good.

“Make no mistake, your continued financial support of ALEC is an endorsement of this dangerous vision for our country,” the letter said.

It’s also apparently bad for business.

David Horowitz speaking at 2018 ALEC Conference in New Orleans, La. on Aug. 10, 2018. (17:51)

For 76,783 homes and businesses in upstate New York, the future of internet access will be a satellite dish and as little as a 20 GB data allowance per month, courtesy of the New York State Broadband Program Office’s decision to partner with HughesNet, a satellite internet provider, instead of finding a provider willing to extend wired internet access to every New Yorker.

HughesNet Satellite “Fraudband”

For town supervisors and village mayors up and down the state, relying on HughesNet is nothing short of breaking Gov. Andrew Cuomo’s promise to bring broadband service to every New York resident.

Lewis town supervisor James Monty called HughesNet and other satellite internet providers “a dead end.”

“HughesNet is not broadband,” Monty said. “I just think it’s a gross waste of public funds to use something that isn’t going to work.”

Rural residents strongly agree, if only because many of them have directly experienced the pain and frustration of satellite internet in the past.

Bethel resident Susan Harte has two words to describe the kind of service HughesNet has provided since it launched its first satellite: “it stinks.”

She isn’t pleased the governor is walking away from rural New Yorkers.

“Definitely broken promises there,” Harte says.

In the North Country, Willsboro town supervisor Shaun Gillilland believes the issue is personal between the governor and his constituents.

“The state made a promise and you’re all here expecting them to carry through on that promise, and I think what we’re finding is that that promise is falling very short,” Gillilland said.

Further west, some residents in Niagara County, near Niagara Falls, are preparing to abandon their homes and move out of state to find internet service and a state government less beholden to corporate interests.

One resident of Middleport tells Stop the Cap! “I’m in a state of disbelief that we are going to actually pull the kids from school and move. We don’t have anymore years to wait. We need internet.”

This particular resident has called out state and elected officials for months on social media to draw attention to the reality rural New Yorkers are going to be stuck with awful internet access for years, while Gov. Cuomo takes credit for a program he will claim is a success story.

A 20 GB Data Cap

HughesNet plans for New York customers at designated addresses for New York’s rural broadband program top out with a 20 GB data cap.

HughesNet appears to be ready to take $15,620,785 from New York and $13,720,697 in private and federal funds and leave residents with internet service even worse than they offer many of their regular customers.

“I’ve already been told by an insider [the only significant benefit New York is getting] is $200 off installation,” the Middleport resident tells us. “The service is exactly the same as ordinary HughesNet except NY Broadband Program Office recipients will have a 20 GB data cap instead of the 50 GB data cap offered elsewhere.”

Susan Potter, who lacks internet access to her home near Watertown, thinks there is a scam afoot.

“Why is New York giving HughesNet $15 million dollars for internet service that any New York resident could order themselves today?” she asked Stop the Cap! “Where is the money going and how exactly will it benefit New York residents? Except for a much smaller and completely inadequate data cap, I cannot find a single thing HughesNet is doing for New York except taking the government’s money for substandard internet access and giving us a break on a satellite dish that can already be discounted from promotions.”

HughesNet’s own website tells an interesting story. Residents who enter an address designated to receive satellite internet by New York are offered just two plans — 10 GB and 20 GB per month (with a 24-month term commitment). Outside of those areas, HughesNet offers up to four plans — 10, 20, 30 and 50 GB allowances per month (with the same two-year term commitment). HughesNet promises “up to 25 Mbps” but disclaims any responsibility if it fails to meet that speed.

“NYBPO officials cannot seem to understand that the technology has limitations and that they can’t offer unlimited data,” the Middleport resident and Stop the Cap! reader added.

Few Albany residents working for the state government have to contend with no internet options, and wired internet plans in New York remain uncapped with no data allowances, which may mean some public officials have yet to grasp the implications of a 20GB data cap, less than what wireless phone companies offer state residents with unlimited data plans. The average home broadband user now consumes an average of 190 GB of data per month, which means HughesNet’s offer is for strictly rationed internet access.

HughesNet plans in parts of North Carolina offer up to 50GB of access.

Back in Lewis, Michael Hopmeier, president of Unconventional Concepts, which provides engineering consultancy services, told the Adirondack Daily Enterprise he openly fears New York’s broadband future has been left in the hands of unqualified bureaucrats running the state’s broadband office:

“I found as an engineer and a person with a background in communications and testing evaluation, that the information that they were providing was completely unrefined,” Hopmeier said. “We were getting broad, vague numbers like ‘99 percent coverage.’”

He said he compiled a list of questions: 99 percent coverage of what? What exactly did they mean by “broadband?” Why were the contracts issued to the companies that they were? Then he and the supervisors filed a Freedom of Information Law request to the state for answers.

“The gist of the responses we received was either no answer, ‘We won’t answer that,’ or the answers made very little sense,” Hopmeier said.

With tens of millions of state taxpayer dollars on the table, Hopmeier worries the state is going to waste a huge amount of money on an unworkable solution for rural New Yorkers.

“My concerns boil down to: one, ‘How are they measuring what they are doing? Two, is there an audit going on? Is there an attempt to review and determine whether those standards and goals are actually being met? And then three, what actions will actually be taken to correct any problems if we can find them,” Hopmeier said.

He has experience using HughesNet himself, and as a result of what he calls “totally technically unacceptable” internet service, he is now sending work out of state to Virginia and Florida, where broadband service is better.

Two hours north of New York City, it is not difficult to find a broadband desert. Steve Israel, writing for the Times Herald-Record, notes Sullivan County communities like Bethel, Callicoon and Delaware, along with Ulster County towns like Marbletown and Rochester are going to be stuck with fixed wireless at 2 Mbps, HughesNet at 15 Mbps (assuming it isn’t congested that day) or for a precious few — Charter Spectrum, which is rebuilding its rural cable systems to support faster internet speeds. For others, DSL from Verizon claims to offer up to 15 Mbps, but few admit to getting service anywhere close to that speed. All of these rosy speed predictions come from the state, but residents on the ground know better.

“Thousands of folks will be left without the high-speed internet Cuomo promised,” Israel wrote.

Frontier’s Internet Nightmares – “They Talk a Lot and Don’t Accomplish Much”

HughesNet isn’t the only provider attracting crowds armed with pitchforks and torches. Frontier Communications, which was recently awarded $9.7 million to extend DSL service to 2,735 more rural customers in the Finger Lakes, Southern Tier and North Country, attracts scorn from its existing customers.

“There is a special place in hell reserved for Frontier’s despicable DSL service,” scowled Lillian Weber.

“Disgustingly inadequate,” fumed Wilmington resident Bob Rose, who has been at war with Frontier for months about slow or intermittent service.

“It’s like not having internet access at all — dial-up used to be faster,” added John Schneider, another unsatisfied customer.

Weber holds the record among her neighbors for the longest delay for a Frontier repair crew to show up — eight weeks, resulting from three “missed” appointments.

“They rarely bother to show up and once claimed they were here but nobody answered the door, despite the fact we spent all day on the porch staring at the driveway,” Weber. “They are even bad at lying.”

Last winter, Wilmington residents found several examples of neglected Frontier lines under pressure from overgrown tree limbs and branches. (Image courtesy: The Sun)

Rose is never sure if Frontier’s repair crews will turn up at his home either when his internet service fails, which is often.

“If I’m lucky, we have an internet connection 60 percent of the time,” Rose told The Sun. “We’ve been frustrated as hell over here, a lot of calls. We might have 1 in 10 days where we have internet all day.”

Frontier says Rose lives in a troubled, “high volume area.” Rose says his entire neighborhood has three or four homes. He now never leaves home without his Wi-Fi hotspot, because it is often the only way to stay connected.

Rose can point to at least one visible problem he saw last winter around his neighborhood. Frontier is simply not taking care of its network.

“It’s unbelievable,” he said. “Tree limbs, heavy with snow, laying right on the cable. They need to trim those trees.”

Local government officials also hear often about Frontier. Essex County Board of Supervisors chairman Randy Preston is one of them.

“Every other week, I get a complaint about Frontier,” he said. He has personally filed a complaint with the state’s attorney general and is sending a call-out to all Frontier customers dissatisfied with their internet service to do the same. He does not believe Frontier deserves a penny of state money, and the company should return what it has already received.

Essex County Board of Supervisors chairman Randy Prestonon Frontier: “They talk a lot and don’t accomplish much.”

“As far as I’m concerned, they haven’t met their commitment,” Preston told The Sun. “The grants should be pulled from them, and they should be fined. They aren’t living up to their commitment, and I don’t think that should be allowed.”

After years of dealing with Frontier, Preston has a saying about the phone company: “They talk a lot and don’t accomplish much.”

The requirements of the current round of broadband funding require participants to offer customers 100 Mbps of service, something a Frontier spokesperson confirmed.

“In general, the program requires projects to have speed capability of 100 Mbps. The Frontier projects will satisfy this requirement of the program,” the spokesperson said.

That will likely require the phone company to bring fiber to the home service to the 2,735 customers to be served. Current customers will believe it when they see it. It is also clear that existing customers will not be so lucky. When asked directly if Frontier will upgrade to fiber-fast internet speeds elsewhere in New York, Frontier Communications manager Andy Malinoski kept his answer to The Sun vague.

“Frontier is constantly investing in, expanding and improving our network as we continue to improve our customer experience in New York and across the United States,” Malinoski said. “The NY Broadband Program is one tactic we are implementing in certain communities to achieve those goals.”

The NY Public Service Commission urges New Yorkers with Frontier DSL problems to complain directly to them.

“If it were to receive a consumer complaint, PSC staff would work to resolve the issue, including bringing in other agencies if necessary,” said James Denn, a spokesman. “Going forward, all upstate New Yorkers will see dramatic improvements in service quality and availability as a result of Gov. Cuomo’s nation-leading investment program. As part of this effort, PSC staff will work closely with the NYBPO to ensure that companies receiving awards, including Frontier, provide good customer service.”

“That’s a hoot,” responded Weber. “They should spend a week with us and after that, if they are smart, they will throw Frontier out of New York right behind Charter.”

Burman

New York State Public Service Commissioner Diane Burman today voted against motions to give Charter Communications more time to develop its six month exit plan to leave New York and a motion to get more time to file a rehearing request about Charter’s alleged violations of merger conditions governing its behavior in the state.

Burman’s opposition was rooted in her irritation over PSC Chairman John Rhodes’ decision to hold an unscheduled special session of the Commission on July 27 (which Burman did not attend because of a scheduled family vacation) where the three remaining commissioners all voted to cancel approval of the Merger Order allowing Charter Communications to acquire Time Warner Cable in New York State.

“I believe it was wrong to have that special session and I don’t believe that the rationale for it is the right one,” Burman told her fellow commissioners this morning at a regularly scheduled Commission Session. “I think it is a slippery slope that there was a special session without me present and that is concerning.”

Burman argued the Commission’s recent approval of time extensions in the Charter case could set a precedent that could take the regulatory agency down a road where companies like Charter and other utilities could delay proceedings by having informal private talks with Commission staff. As a result, Charter has effectively stopped the Commission’s clock on pre-determined deadlines like a 30-day limit to file a petition asking the Commission for a rehearing.

“The message that I fear we are sending is if there is an order that someone disagrees with and they are going to file a petition for rehearing […] if they are engaged in ‘productive’ dialogue, whatever that term may be, between the staff, we can wait for the petition for rehearing to be filed past the 30 days,” Burman argued. “For me, the impactful piece of it is that by saying ‘don’t file now’ we are blocking the [regulatory and public notice] process and the opportunity to start that clock so that people have the opportunity to comment on what we may be doing, which may be helpful.”

Because the Commission has approved delays allowing Charter company officials and the Commission to continue privately discussing matters, none of those conversations are on the public record and no groups, including Stop the Cap!, can scrutinize the discussions and file comments about those conversations, Commission decisions that may result from those talks, or suggest alternative corrective measures to consider.

The PSC’s counsel this morning admitted the Commission and Charter were engaged in active settlement discussions, but it isn’t known if those talks relate to overturning the Commission’s decision to banish Charter from the state or are about more procedural matters such as how Charter plans to hand over cable service to another entity.

“I think there are lessons to be learned from having the special session without me there and I do think that going forward, we need to be more cognizant of taking into consideration what the perception is by not having the full Commission body, minus one because there is a vacancy, [vote together on matters of great consequence like this] regardless of whether counsel believes there is an appropriate quorum or not,” Burman added.

The final vote on both measures extending deadlines in Charter’s favor was 3-1. Both measures passed.

N.Y. PSC Commissioner Diane Burman opposed the extension of the deadline for Charter Communications to file its plans to leave New York State and to request a rehearing of a July decision revoking their merger with Time Warner Cable in New York. (29:26)