Last week, AT&T announced its intention to abandon an appeal of a decision of the 9th Circuit Court of Appeals granting the Federal Trade Commission the right to continue its lawsuit against AT&T for speed throttling its “unlimited data” wireless customers.

The notification came in a surprising four sentence notice filed with the court May 30:

At the May 10, 2018 case management conference in this matter, AT&T informed the Court that it expected at that time to request a 60-day extension from the Supreme Court of the deadline to file a petition for certiorari. See Audio Recording of May 10, 2018 Hr’g at 7:22. Since that hearing, AT&T has decided not to request such an extension and not to file a petition for certiorari to review the decision of the en banc Ninth Circuit, see 883 F.3d 848 (9th Cir. 2018). The deadline to file a petition for certiorari lapsed on May 29, 2018.

AT&T spokesman Mike Balmoris later told reporters: “We have decided not to seek review by the Supreme Court, to focus instead on negotiating a fair resolution of the case with the Federal Trade Commission.”

AT&T’s sudden change of heart surprised many observers, including some closely following the case at the 9th Circuit, which has held regular court supervised meetings to prepare for the widely expected Supreme Court challenge. AT&T notified the court in early May it would file its appeal as soon as May 29, and the court was preparing new discovery guidelines and deadlines between the two parties as the case proceeded.

AT&T had achieved a major victory in 2017 when a three-judge panel at the Ninth Circuit agreed with AT&T’s argument that the FTC had no jurisdiction over the company because part of its business includes traditional telephone service, something defined in law as being regulated exclusively by the FCC. At the same time, the FCC did not seem to have jurisdiction either, because wireless data throttling took place over a network not subject to common carrier service regulations.

Ninth Circuit Court of Appeals — San Francisco.

The Ninth Circuit then agreed to hear the case once again, this time “en banc” — meaning the full court would re-hear the case instead of a limited panel of three judges. In February, the court unanimously found the FTC did have regulatory jurisdiction over AT&T after all:

We conclude that the exemption in Section 5 of the FTC Act – “except . . . common carriers subject to the Acts to regulate commerce” – bars the FTC from regulating “common carriers” only to the extent that they engage in common-carriage activity. By extension, this interpretation means that the FTC may regulate common carriers’ non-common-carriage activities.

[…] This statutory interpretation also accords with common sense. The FTC is the leading federal consumer protection agency and, for many decades, has been the chief federal agency on privacy policy and enforcement. Permitting the FTC to oversee unfair and deceptive non-common-carriage practices of telecommunications companies has practical ramifications. New technologies have spawned new regulatory challenges. A phone company is no longer just a phone company. The transformation of information services and the ubiquity of digital technology mean that telecommunications operators have expanded into website operation, video distribution, news and entertainment production, interactive entertainment services and devices, home security and more. Reaffirming FTC jurisdiction over activities that fall outside of common-carrier services avoids regulatory gaps and provides consistency and predictability in regulatory enforcement.

In short, AT&T’s “get out of regulatory oversight free”-card was revoked, much to its consternation. The company promised a fast appeal to the Supreme Court. The case concerned a number of observers, not the least of which was the Federal Communications Commission, which has been so concerned about AT&T’s novel argument to escape regulation, it filed a brief supporting the FTC with the court:

If the en banc Court were to adopt AT&T’s position that the FTC Act’s common-carrier exception is “status-based” rather than “activity-based,” contrary to the reasoned analysis of the district court below, the fact that AT&T provides traditional common-carrier voice telephone service could potentially immunize the company from any FTC oversight of its noncommon-carrier offerings, even when the FCC lacks authority over those offerings—creating a potentially substantial regulatory gap where neither the FTC nor the FCC has regulatory authority.

That approach is contrary to a common-sense reading of the relevant statutes and could weaken or eliminate important consumer protections. While AT&T may prefer to offer services in a regulatory no man’s land, the law does not dance to AT&T’s whims.

While AT&T publicly expressed confidence about its appeal right up to the day it abandoned it, minutes from the Ninth Circuit trial scheduling and progress conferences reveal AT&T and the FTC were already privately talking with each other to avoid further litigation:

“Parties reported that they are conducting settlement negotiations.”

All observers agree a successful appeal by AT&T to the Supreme Court could have put telecommunications laws and regulations into chaos. Had AT&T successfully restored the three-judge panel’s decision, any telecommunications company could walk away with impunity from FCC and FTC oversight by simply starting a small telephone company serving just a handful of customers. Just one product or service subject to common carrier rules could effectively immunize a phone or cable company from regulations indefinitely, or until Congress changed the law to close that loophole.

Some observers predict AT&T’s decision not to appeal is a prelude to an imminent, favorable permanent settlement of the four-year old case. The evidence strongly suggests AT&T will likely escape any significant monetary punishment, and affected consumers may not get significant (if any) compensation for AT&T’s prior acts:

• The FCC shows no sign of following through on a 2015 press release threatening AT&T with $100 million in fines for its failure to properly disclose its speed throttling policy arbitrarily imposed on unlimited data customers who exceeded a company-defined amount of data usage. At the time the press release was issued, there were three Democrats and two Republicans serving on the Commission. Both of those Republicans opposed the fine and are now part of the Republican majority at the FCC under the Trump Administration. The FCC admitted in court papers that no further action has been taken to fine AT&T. The case was largely left in the hands of the FTC.
• During the Obama Administration, the FTC claimed it was interested in pursuing refunds for affected customers and punishing AT&T for its throttling practices. Last week, Andrew Smith, the FTC’s new director of the Consumer Protection Bureau told an audience today’s priority it to monitor providers over traffic throttling and making sure those practices are transparently disclosed to customers. “We’re planning to examine current practices in the industry,” Smith said. “We’re looking for areas in which ISPs may be engaged in unfair or deceptive practices, and we will bring enforcement action as appropriate.”

Smith

For AT&T, the decision to drop its appeal may have come down to whether it preferred to temporarily escape regulatory oversight until an enraged Congress passed new laws to put AT&T and other telecom companies back under oversight, or living with the kind of “light-to-little touch” regulatory approach favored by the Trump Administration and its regulatory agencies. Whatever deal emerges between AT&T and the Trump Administration’s FTC will likely be “win-win” for the company and the regulator, with consumers offered only token relief.

The goals likely to be achieved in any settlement:

• AT&T would clearly like to avoid a $100 million fine and other enforcement actions, so agreeing to ease throttling (something it has done already) and better disclose the practice would hardly create a problem for the company, especially if fines are dropped as a result.
• The FCC’s new “net neutrality” policy depends almost entirely on effectively abdicating oversight responsibility to the FTC, something embarrassing and hard to justify if AT&T managed to permanently bar the agency from regulating the company.
• The FTC can claim victory by telling consumers they are watching ISPs for undisclosed and unwarranted throttling, without opening up new legal challenges by outright banning of the practice, heavily fining violators, or collecting damages on behalf of customers victimized by prior bad acts.

Among the major wireless companies with spectrum holdings worth billions, few would suspect that the fifth largest (behind Sprint, AT&T, Verizon, and T-Mobile) is the satellite television company Dish Networks.

After spending nearly $20 billion over the last ten years acquiring nearly 95 MHz of extremely valuable low and mid-band spectrum in markets across the United States, Dish is the largest wireless company that isn’t actually providing wireless service. Critics have questioned whether Dish co-founder Charlie Ergen was ever really interested in getting into the wireless business when he could make an even bigger killing warehousing spectrum until it grows in value and can be profitably sold to someone else. One Wall Street analyst thinks there is a strong case for exactly that. Cowen and Company estimates Dish’s holdings are now worth $30.2 billion — a $10 billion profit possible from keeping spectrum off the market until a buyer is willing to make an offer Dish cannot refuse.

Unfortunately for Ergen, spectrum is public property and ultimate ownership rights can never be sold or transferred. Instead, the FCC licenses companies to use the public airwaves, and has provisions to take them back if a company does not put that spectrum to good use. For Dish Networks, the first important deadline is March 2020, by which time the FCC expects Dish to achieve at least 70% market coverage of its 700 MHz “E-Block” and 2000-2020/2180-2200 MHz AWS-4 licenses.

Dish’s “E-Block” spectrum was formerly known as UHF channel 56. Dish has already begun testing the next-generation TV standard ATSC 3.0 on its E-Block spectrum in Dallas, as part of a joint venture with TV station owners Sinclair, Nexstar, and Univision. Dish proposed to use this spectrum, which covers 95% of the United States, as a potential tool for broadcasters. Among the services Dish could offer are broadcast data applications made possible with the ATSC 3.0 standard.

Because time and money is on the line, Dish needs to either build its network quickly or sell/lease its spectrum to other companies before facing possible spectrum forfeiture in less than two years. Analysts say one of the cheapest and easiest ways of placating the FCC is to deploy a modest, narrowband wireless network designed for machine-to-machine communications. These networks rely on short bursts of data to communicate information. Possible applications include exchanging irrigation and crop data collected from wireless sensors and various remote weather and climate measurement tools.

Coincidentally, that is exactly the kind of network Ergen initially envisions, largely operating on the sparsely used AWS bands. Officially called “NB-IoT” in wireless industry parlance, the ‘narrowband Internet of Things’ network would be the first chapter of Dish’s wireless story. It’s a network done on the cheap — constructed with a relatively low investment of $500 million to $1 billion through 2020, adequate enough to keep the FCC off Dish’s back.

Ergen reports the radios have been ordered and in a sign of serious intent, Dish has now signed master lease agreements with cell tower companies that will allow Dish to place its transmission equipment on tens of thousands of cell towers around the country. The company has also hired experts in tower permitting and network design and planning. Those contracts are an important indicator for some skeptics on Wall Street who believed Ergen would not show seriousness of intent until he signed paid, binding commitments to begin network buildout.

Ergen would disagree that Dish has been foot-dragging its wireless network deployment, despite a decade of accumulating wireless spectrum that has gone unused.

“It’s all about timing; too early you are roadkill, if you get it just right you have a chance,” Ergen said. “We missed the 4G shift because of the regulatory reasons. The next big paradigm shift is 5G.”

Ergen

Unfortunately for Ergen, he will be late to that paradigm shift, admitting his dream of a national 5G network isn’t possible right now.

“We’re […] going to spend at least $10 billion or more on a 5G network,” Ergen said, while also admitting, “we don’t have that kind of capital on our balance sheet today.”

Ergen promised that sometime in the future, Dish will begin a “second phase” that will “build a complete 5G network.” But Ergen’s vision of 5G is somewhat different from Verizon and AT&T, which are focused on the consumer and business voice and data markets. Ergen envisions a robust 5G network designed to support IoT applications like smart cities, artificial intelligence, and autonomous vehicles, and does not seem interested launching a fifth national cell provider.

Ergen quit in December 2017 as CEO of Dish’s aging satellite TV business to refocus on Dish’s mobile future, and to recast the venture as a glorified startup, much like his early days in the home satellite television business where he got into the business manufacturing 10-foot C-band satellite dishes for consumers and then sold the programming to watch on those dishes. From money earned in that business, Ergen launched Dish Networks, which relies on today’s familiar small satellite dishes and competes with DirecTV.

Ergen’s satellite TV venture only had to compete with one other satellite provider. His wireless network will have to compete with at least four established national wireless companies, plus emerging competition from the cable industry and regional cellular providers. Ergen tried to turn that obvious business challenge into an opportunity:

“We have two disadvantages; We don’t [have many] customers and we are not as knowledgeable as other people in the business, but we don’t have the legacy of 2G, 3G, 4G networks,” Ergen said. “We have a clean sheet of paper with 5G. It reminds me of 1990 when we decided to reinvent ourselves from the big dish business to small dish. It took five years to design and build that system with not one penny of revenue, and we obsoleted the business we were in. When we got into satellites, we didn’t know anything about it, but neither did anyone else. It is the same with 5G/IoT. We are not the world’s experts, but neither is anyone else.”

What Ergen lacks in experience he makes up for in enthusiasm, laying out plans for Dish’s wireless future. By the time he activates 5G service, Dish expects to use its combined 95 MHz of spectrum in the 600 MHz and 2 GHz range for that network. That will take until at least July 2020, because many of the 600 MHz frequencies he needs are still occupied by UHF television stations that are in the process of migrating to a more compact UHF band.

Dish has spectrum holdings that reach almost every corner in the U.S.

Ergen may also consider acquiring additional millimeter wave spectrum if he deploys small cell technology. He has even decided to keep small cell and larger traditional “macrocells” found on traditional cell towers on different frequencies, claiming sharing the frequencies would create interference issues.

Ergen also hopes to convince the FCC to repurpose little-known Multichannel Video Distribution and Data Service (MVDDS) spectrum located between 12.2-12.7 GHz for 5G wireless applications. That solid block of 500 MHz of spectrum could be an important asset to power small cell 5G networks, because it can support faster speeds than the typical smaller blocks of frequencies most companies control. MVDDS also lacks a significant constituency to protect it, having been woefully underutilized in the United States. Only tiny Cibola Wireless, an ISP in Albuquerque, N.M., licenses MVDDS technology for its wireless internet service, selling Albuquerque residents up to 50 Mbps speed for $79.99 a month. Users claim the service does not suffer the latency problems of traditional satellite internet access, but can still slow down if too many users are online at the same time.

Back in 2010, MVDDS technology was seen as a potential competitor to companies like Dish and DirecTV, as well as satellite internet providers which share similar spectrum. Like satellite internet, MVDDS can transmit and receive data over a small dish. But instead of pointing it to a satellite 44,000 miles away, MVDDS systems target a ground-based transmission tower much closer nearby. The technology never attracted much attention, and will now likely be displaced by 5G in the United States, although it has done modestly better abroad, serving a limited customer base in the United Arab Emirates, Ireland, France, Vietnam, Greenland and Serbia.

Connecticut’s telecommunications regulator has effectively banned public broadband in the state, ruling that municipalities cannot use their reserved space on utility poles if it means competing with the state’s dominant telecom companies — Comcast, Altice, and Frontier Communications.

The ruling by Connecticut’s Public Utilities Regulatory Authority (PURA) is a death-blow for municipalities seeking to build gigabit fiber networks to offer residents the broadband speeds and services that incumbent phone and cable companies either refuse to provide or offer at unaffordable prices.

Among the petitioners appealing to PURA to protect them from competition is Frontier Communications, which owns a large number of utility poles across the state acquired from AT&T. The company was unhappy that municipalities were planning to use reserved space on state utility poles to construct fiber to the home networks that are generally superior to what Frontier offers consumers and businesses in the state. Other providers, like Frontier, said little about the early 1900s Connecticut statute that guarantees municipalities “right of use space” on poles until it became clear some communities were planning to threaten their monopoly/duopoly profits.

The law was originally written to deal with the dynamic telecommunications marketplace that was common in the U.S. during the late 1800s and early 1900s. Utility pole owners were confronted with a myriad of companies selling telegraph and telephone service — all seeking a place on increasingly crowded poles. Local governments could have been crowded out, were it not for the “Act Concerning the Use of Telegraph and Telephone Poles,” approved on July 19, 1905. It was one sentence long:

Every town, city, or borough shall have the right to occupy and use for municipal purposes, without payment therefor, the top gain of every pole now or hereafter erected by any telephone or telegraph company within the limits of any such town, city, or borough.

The law stood as written until 2013, when the legislature clarified exactly who could benefit from the use of “municipal gain.” Where the original law effectively protected reserved pole space for “municipal” use, the language was broadened in 2013 to read “for any purpose.”

Observers said the law was modified because of ongoing disputes with pole owners relating to planned municipal broadband projects. Frontier, in particular, has sought restrictive pole attachment agreements with communities trying to build out their broadband networks. In addition to accusations of foot-dragging over issues like “make ready” — when existing pole users move wiring closer together to make room for new providers, Frontier has tried to impose restrictive language on communities that would permanently restrict their ability to offer service. The most common restriction is to compel towns to agree to use their pole space exclusively “for government use,” which would restrict third-party providers hired to manage a community’s municipal broadband service.

PURA’s decision surprised many, because it completely ignored the 2013 language changes and relied instead on its perception of a conflict between state and federal laws. PURA ruled “municipal gain” establishes “preferential access” for towns and communities, and could be in conflict with the federal Communications Act, which mandates “non-discriminatory access” to utility poles, and prohibits local governments from blocking companies from providing telecommunications services.

“Providing municipal entities free access to the communications gain for the purpose of offering competitive telecommunications services … appears to be inconsistent with these principals and other aspects of federal law,” the decision reads.

In the early 20th century, vibrant competition meant a lot of utility poles were crowded with wires.

Except communities are not seeking to block providers looking to offer broadband service. These communities are seeking to become a provider. Pole attachment controversies typically relate to unreasonable limits on access to poles and allegations of price gouging pole attachment fees, not “preferential access.”

The end effect of PURA’s ruling: communities can use their pole space for government or institutional purposes only, such as building closed fiber networks available only in public buildings like libraries, schools, town halls, and police and fire departments. It also means any community seeking to build a fiber broadband network serving homes and businesses will either have to pay market rates for pole space, give up on the project, or place all the project’s wiring exclusively underground — a potentially costly alternative to aerial cable and one likely to cost taxpayers millions.

“We are very disappointed in the decision,” Consumer Counsel Elin Katz told Hartford Business. Katz is a strong supporter of municipal broadband. “It ignores the plain language of the statute, and by deciding that [municipal gain] cannot be used by our cities and towns to provide broadband to those affected by the digital divide, denies our municipalities a tool provided by the legislature for just that purpose.”

Frontier and the state’s cable and wireless companies, however, are delighted PURA has come to their rescue, calling its decision “fully consistent with the law.”

“Frontier Communications continues to support efforts to expand broadband access in Connecticut,” said spokesman Andy Malinowski. “PURA reached the correct result. This decision helps ensure the continuation of robust broadband competition in our state.”

The New England Cable & Telecommunications Association (NECTA), the cable industry’s regional lobbying group in the region, was also happy to see an end to unchecked municipal broadband growth and the competition it will bring.

“Our members, who pay millions of dollars annually to rent space on utility poles, offer competitive broadband services with speeds ranging up to 1 gigabit-per-second for residential Connecticut customers, in addition to offering speeds up to 10 gigabits for business customers,” noted NECTA CEO Paul Cianelli.

Other supporters of PURA’s decision include the wireless industry lobbying group CTIA and the Communications Workers of America — unionized employees at Frontier Communications who fear their jobs may be at risk if a municipal provider gives Connecticut customers an additional option for broadband service.

PURA’s decision leaves little room for municipal broadband expansion efforts that have been underway in the state for a decade. Most projects that cannot afford to pay for space on utility poles or the cost to switch to underground cable burial will probably not survive unless a court overturns the regulator’s decision or the state legislature clarifies state law in a way that makes PURA’s current interpretation untenable.

A number of groups are considering suing PURA to overturn its decision, noting the regulator completely ignored the very clear and understandable 2013 language that allows municipalities to use their allotted space on utility poles “for any purpose.” That purpose includes giving the state’s telecom duopoly some competition.

Time Warner Cable offered $14.99 internet access to anyone. Charter isn’t.

Charter Communications can stop accepting new customers in New York State for Time Warner Cable’s legacy “Everyday Low Price” internet service, offering basic internet service for $14.99 a month without a contract or income qualification.

Under the terms of the New York Public Service Commission’s Merger Order, Spectrum was required to continue offering Time Warner Cable’s affordable internet service for at least two years after the close of the merger to any customer in the state that wanted it. New York was the only state in the country that put meaningful deal conditions on the Charter-Time Warner Cable-Bright House merger, requiring the country’s second largest cable operator to share pro-consumer benefits with its customers in the state.

The second anniversary of the merger occurred on May 18, 2018, which means Spectrum is no longer required to enroll new customers in the Everyday Low Price (ELP) plan. Existing ELP customers can keep the plan until at least May 17, 2019, as long as they do not make changes to their account that would result in their enrollment being canceled. Once canceled, customers cannot get the legacy plan back. At about the same time next year, Charter can also compel its New York customers to abandon existing Time Warner Cable plan(s), in favor of Spectrum plans and pricing, should the company wish to do so.

Three years after Hillboro’s city council accepted the recommendation of a consultant that warned the city away from running its own residential fiber network, local officials have changed their mind and plan to extend the city’s institutional fiber network to homes and businesses, offering affordable $10 a month internet access, as well as gigabit speed for $50 a month.

The Oregonian reports Hillsboro Mayor Steve Calloway wants to move fiber back on the agenda because recent experiences in other western cities with public broadband networks found a much higher buy-in by local residents, with up to 50% willing to ditch Comcast, CenturyLink, Frontier and other providers in favor of fiber to the home service. A recent “conservative” estimate expected 36% of Hillsboro residents would sign up if given the chance. Ongoing complaints about poor customer service from Frontier Communications, the area’s phone company, only increased support for the public broadband initiative.

In 2015, a consultant hired to study the feasibility of offering public broadband in Hillsboro, the fifth largest city in Oregon, recommended against it, which caused the city council to shelve the project. Uptown Services said Hillsboro would have to spend around $66 million for what it felt would be a “marginally viable” fiber to the home network expected to grab only a 28% share of a market dominated by Comcast.

Despite the cost, more than 77% of respondents to a phone survey held at the time were interested in switching to the city’s municipal fiber network, if it was priced at least 10% less than the competition. Hillsboro’s fiber aspirations face significant cost challenges other communities don’t, because 80% of buildings in Hillsboro are served by buried cables, which cost much more to install over aerial cable strung between utility poles.

Hillsboro is a rapidly growing community, with plans to develop 8,000 new homes in South Hillsboro that could eventually house 20,000 people. The new housing construction offers a unique and affordable opportunity to place underground fiber optic cables in the same trenches already dug for electrical, cable, and telephone service.

The city plans to start the project by running fiber into lower-income areas of the Southwest Hillsboro/Shute Par area, to offer affordable access to residents for as little as $10 a month. More affluent customers will be able to select gigabit service for $50 a month — cheaper than what Comcast and Frontier offer.

To keep the impact on the city budget reasonable, Hillsboro city council is being asked to allocate $4 million annually for fiber rollouts starting in 2019, with an equal amount each year through 2024. City engineers estimate it will take a decade to completely wire the community of 92,000, located just west of Portland.