CenturyLink is seeking “greater flexibility” to set its own prices, terms and conditions of service without a review by Washington State regulators, even as its broadband customers complain about bait and switch Internet speeds and poor service.

Three years after the Monroe, La., based independent phone company purchased Qwest — a former Baby Bell serving the Pacific Northwest — CenturyLink continues to lose customers to cell phone providers and cable phone and broadband service. Since 2001, CenturyLink and its predecessor have said goodbye to 60 percent of their customers, reducing the number of lines in service from around 2.7 million to just over 1 million.

CenturyLink is apparently ready to lose still more after upsetting customers with a notice it intended to seek deregulation that could lead to rising phone bills.

Docket UT-130477, filed with the Washington Utilities and Transportation Commission (WUTC) proposes to replace currently regulated service with what CenturyLink calls “an Alternate Form Of Regulation.” (AFOR)

If approved, CenturyLink will “normalize” telephone rates in Washington State, language some suspect is “code” for a rate increase. For CenturyLink customers in cities like Seattle, Spokane, and Tacoma, the maximum rate permitted for basic phone service for the next three years will be $15.50 (unless a customer already pays more), before calling features, taxes, and surcharges are applied. Most observers, including the state regulator, suspect CenturyLink will limit rate hikes to $1-2 if approved. A higher increase might provoke more customers to leave.

Washington residents already pay the nation’s second highest taxes on wireless service. Now landline customers also pay more. (Graphic: The Spokesman)

“We don’t think they can do much because, in our view, all (a big rate increase) is going to do is accelerate people dropping the landline into their homes,” Brian Thomas, a spokesman for the Washington Utilities and Transportation Commission told The Spokesman-Review. “A lot of people are cutting the cord.”

Frontier Communications, which previously won its own case for deregulation within its service areas including Everett, Wenatchee, and Tri-Cities, raised rates about $1 beginning this month.

A spokesman for the company confessed Frontier’s phone service is becoming obsolete.

“It’s safe to say plain old telephone service is in the process of becoming archaic for some people,” Frontier’s Carl Gipson said. “Five years from now, it will be almost – but not quite – extinct.”

Every rate change seems to provoke a review of whether landline service is still necessary.

Earlier this year, CenturyLink jumped on board legislation that purposely increased phone rates by several dollars a month by removing the sales tax exemption on residential telephone service. Wireless companies did not enjoy the same exemption and sued for parity.

A confidential settlement with state regulators made Washington phone customers, instead of telecom companies, liable for the sales tax starting in August. As a result, some residential phone bills went up at much as $5 based on retroactively charged sales tax.

Customers sticking with CenturyLink often say it is the only broadband provider in rural towns across the state. Although better than satellite broadband, the lack of regulatory oversight and technology investments have allowed CenturyLink to sell Internet speeds it cannot provide to customers.

At a hearing held this week by the San Juan County Council, members criticized CenturyLink officials on hand for selling fast service but delivering slow speeds to the group of islands between the mainland of Washington State and Vancouver Island, B.C.

Hughes

“Last night I did a speed test at my house and I am paying for 10Mbps but only getting 4.74Mbps,” complained Councilman Rick Hughes (District 4 – Orcas West). “I am paying for 10 and I am only getting 5Mbps, so how is that fair? There has been a ton of frustration over the last two years we have worked on this broadband issue. Everywhere I go and every meeting I talk to all I hear is complaints about CenturyLink. No matter what they are paying for, it’s a poor broadband connection to the end customer.”

CenturyLink provides broadband to 88% of the territory the company serves in Washington. Like most telephone companies, CenturyLink relies on DSL in much of its footprint and has upgraded central offices, remote equipment, and the telephone lines that connect them. On the San Juan Islands, most customers used to receive 1-3Mbps, but CenturyLink claimed at this week’s hearing it spent billion on infrastructure improvements that can now deliver faster Internet service across the state. In San Juan County, CenturyLink claims:

• 58% of all qualified addresses were upgraded to 10-25Mbps;
• 66% now qualify for more than 10Mbps (but less than 25Mbps) versus 46% prior to upgrades;
• 29% of customers now qualify to sign up for 25Mbps service.

CenturyLink warned the council its speed claims were not to be taken literally, noting DSL “speed is dependent on distance from equipment; speeds drop quickly as distance increases.”

Hughes told CenturyLink officials residents appreciated the investment, but customers were still disappointed after being promised higher speeds than actually received.

“When people call customer service, there is always an excuse about why there is a problem,” said Hughes. “If people are paying for something, they want to receive it.”

“For our long-term financial interests in this county, we need to have reliable 10-25Mbps service to customers on any part of the islands,” Hughes added. “My goal has always been 90+ percent should be able to get 25Mbps or better connectivity in the county.”

The problem for CenturyLink is the amount of upgrade investment versus the amount of return that investment will generate. San Juan County is disconnected from the mainland and collectively house only 15,769 residents. But it is also the smallest of Washington’s 39 counties in land area, which can make infrastructure projects less costly.

CenturyLink committed to continue investment in its network “where economically feasible.”

San Juan County’s Orcas Power & Light Cooperative (OPALCO), a member-owned, non-profit cooperative electric utility may have a partial solution to the problem of meeting Return on Investment requirements.

OPALCO originally proposed a hybrid fiber-wireless system designed to reach 90% of the county with a $34 million investment, to be built over two years. When completed, all county residents would pay a $15 monthly co-op infrastructure fee and a $75 monthly fee for broadband and telephone service. To gauge interest, OPALCO asked residents for a $90 pre-commitment deposit. By the annual meeting in May, the co-op admitted only 900 residents signed up and it needed 5,800 customers to make the project a success.

Some residents balked at the high cost, others did not want wireless broadband technology, and some local environmental activists wanted OPALCO to focus on clean, affordable energy and avoid the competitive broadband business.

The lack of commitment forced the co-op to modify its broadband plans, offering a “New Direction” to residents in June 2013.

OPALCO elected to stay out of the ISP business and instead announced a public-private initiative, providing fiber infrastructure to existing service providers. In effect, the co-op will cover the cost of building fiber extensions where CenturyLink is not willing to invest. For a $3-5 million investment from the co-op, ISPs like CenturyLink will be able to commission OPALCO to build fiber in the right places to make DSL service better. CenturyLink would have non-exclusive rights to the fiber network and would have to pay the co-op a service lease fee.

Unlike ISPs in other communities that have shunned publicly funded fiber infrastructure, CenturyLink says it will contemplate a trial — buying bandwidth from OPALCO instead of enhancing its own fiber middle mile network — to test what level of improved service CenturyLink can offer customers.

Regardless of CenturyLink’s plans, OPALCO is moving forward installing limited fiber connections as part of an effort to develop a more modern electric grid.

“Our data communications network brings exponential benefit to our membership,” OPALCO notes. “It includes tools that allow the co-op to: control peak usage and keep power costs down, remotely manage and control the electrical distribution system, manage and resolve power outages more efficiently, integrate and manage community solar projects and improve public safety throughout the county.”

There are some drawbacks, reports Wally Gudgell from The Gudgell Group.

“It will take longer to implement, and will impact fewer businesses and households,” Gudgell writes. “While about two-thirds of the islands will eventually be covered, more remote areas will have to work with a local ISP and potentially pay more for service.  DSL coverage for homes that are further than 15,000 feet from CenturyLink fiber-served distribution hubs will be challenging. Some homeowners may need to pay for fiber to be run to their homes by Islands Network (fiber direct is costly, estimated at $20/foot).”

EPB this morning celebrated its fourth anniversary by thanking Chattanooga residents for supporting the utility’s fiber network with a series of price cuts and speed increases.

Beginning today, EPB’s fiber broadband customers are getting the following upgrades and savings:

• 50/50Mbps customers get a free upgrade to 100/100Mbps service with no change in their current price ($57.99/month);
• 100/100 and 250/250Mbps customers get a free upgrade to 1,000/1,000Mbps service;
• 1,000/1,000Mbps customers now paying $349 a month will see their bills slashed to $69.99 a month, a savings of $230 a month;
• EPB’s business broadband customers will be contacted individually to coordinate the speed upgrades.

Customers will see the new speeds provisioned within the next two weeks. At least 3,000 residential customers will be upgraded to gigabit service.

EPB also reported this morning it has 55,000 broadband customers.

EPB is one of the nation’s most successful municipal fiber providers and is proving itself a major challenger to Chattanooga’s cable competitor Comcast and incumbent phone company AT&T.

AT&T’s U-verse is the least capable network in Chattanooga, because its fiber-to-the-neighborhood technology currently limits AT&T’s maximum broadband speed in the city to 24/3Mbps. AT&T says it is working on doubling or tripling speeds, but it still leaves U-verse far behind Comcast and EPB.

Comcast has lost at least 47,000 customers in Chattanooga, estimates EPB CEO Harold DePriest. Comcast originally had 122,000 customers on the EPB grid when EPB launched fiber broadband. This year, Comcast has about 75,000 customers and is expected to see numbers decline further in 2014 to about 60,000 customers.

The best Comcast offers is 505/20Mbps service in select cities, with a price tag of $400 a month.

Neither Comcast or AT&T is competing on price for higher speed broadband in Chattanooga. Comcast charges $114.95 a month for 105/20Mbps service and offers 505/100Mbps service in a handful of other cities, for $399.95 a month. Comcast is also currently testing the reintroduction of usage caps and overlimit fees in several markets.

AT&T charges $65 a month for 24/3Mbps service — its fastest — with a 250GB monthly usage cap, currently not enforced. For $5 more, EPB customers get 1,000/1,000Mbps with no usage limits or overlimit fees.

EPB has been criticized by conservative groups, bloggers, and its competitors that argue municipal utilities have no business being in the broadband business. Most of these groups predicted EPB Fiber would deliver a costly failure for Chattanooga utility ratepayers. The utility has also come under repeated fire from the conservative editorial page in the Chattanooga Times-Free Press, often from ex-editorial writer Drew Johnson, who was fired in August.

DePriest can afford to take the criticism all in stride. He has been with the publicly owned utility for 42 years and has seen Chattanooga transformed from its old manufacturing roots into an increasingly high-tech city, thanks in part to EPB’s robust broadband infrastructure that has exceeded even EPB’s expectations.

EPB’s original business plan called for 28,000 customers to break even, with an estimated ceiling of 43,000 customers that would be willing to sign up. EPB has already passed both estimates with additional growth anticipated. DePriest even predicts EPB could surpass Comcast — the city’s biggest broadband and cable TV player — in market share by the end of next year.

Far from being a financial failure, EPB Fiber is now covering the $19 million debt payment incurred by the utility’s electric business, protecting Chattanooga residents from an electricity rate increase.

EPB is also making money offering advice to other cities who want to launch their own publicly owned fiber networks and avoid making costly mistakes. Consulting services will net EPB more than $1 million over the next three years.

[flv width=”640″ height=”380″]http://www.phillipdampier.com/video/EPB EPB 4th Anniversary Speed Increases Price Cuts for Gigabit 9-17-13.flv[/flv]

EPB CEO Harold DePriest announces speed increases and price cuts for customers to celebrate the utility’s fourth anniversary in the broadband business. (3 minutes)

Correction: The original story misreported Comcast’s upstream speed for its 505Mbps tier as 20Mbps. It is, as corrected above, 100Mbps.

Waiting for Comcast and Verizon to offer cutting edge broadband to 620,000 Baltimore city residents and businesses appears to be going nowhere, so the city is hiring an Internet consultant to consider whether to sell access to its existing fiber network.

Baltimore officials spent at least a year trying to convince Google to launch its fiber network in the city only to be bypassed in favor of Kansas City, Austin, and Provo, Utah. Local unions and community groups have also attempted to embarrass the local phone company by publicly protesting Verizon’s lack of interest in expanding its fiber optic network FiOS in Baltimore. Comcast has proved a disappointment for many, with the latest technology going to other cities well before Baltimore gets improved service.

Baltimore’s Board of Estimates voted to spend $157,000 to hire Magellan Advisors to produce a cost-benefit analysis of expanding the city’s current fiber infrastructure to deliver better Internet access.

“I’m paying more here for lesser service, so I think one of the things we want to try to do is look at that, look at what [current companies] offer and try to incentivize people to offer more,” Baltimore’s chief information officer Chris Tonjes told the Baltimore Business Journal. “In the short term, we’re going to do a study. In the medium run, we’re going to try to renegotiate the cable franchise agreement. In the longer run we want to make it more profitable for providers to come in here and offer the expanded service.”

Like many cities, Baltimore already owns and operates its own fiber ring, built with public funds to support the city’s public safety radio system. Like many municipal institutional fiber networks, Baltimore’s fiber ring is underutilized. Public safety and other institutional users often use just a fraction of available capacity. Despite the fact such networks are often oversized, they are rarely controversial because they do not typically compete with commercial providers and are usually off-limits to the public.

As Baltimore prepares to update their existing fiber infrastructure, Magellan will study the implications of leasing excess capacity to third-party providers that can sell broadband access to private businesses and individuals. Even Comcast and Verizon would be welcome to lease capacity.

Neither company has shown much interest, and the proposal received a strong rebuke from Maryland Sen. Catherine Pugh (D-Baltimore City):

Pugh

For the most part, municipally-built broadband networks have the economic chips stacked against them and, where tried, have saddled local taxpayers with a mountain of debt and half-built networks that are then sold at fire-sale prices to vulture investors. Taxpayers in Provo, Utah, for instance, spent $40 million to build a relatively small and modest network only to sell it for $1 a few years later because they underestimated the massive costs of operating, upgrading and maintaining it.

But Provo is just the latest exhibit in a long pantheon of such failed initiatives that include Groton, Conn., ($38 million taxpayer loss) and Marietta, Ga., ($35 million taxpayer loss). Cities as large as Philadelphia, New York and Chicago and as small as Lompoc, Calif., and Acworth, Ga., have also tried and failed to launch their own broadband networks — or simply gave up.

Pugh’s editorial, published in both the Wall Street Journal and The Baltimore Sun, failed to disclose Pugh has received political campaign contributions from both Comcast and Verizon. More importantly, Pugh did not bother to mention she is the president-elect of the National Black Caucus of State Legislators, a group with close ties to both Comcast and Verizon Communications.

Among the “member corporations” of the NBCSL — companies who “weigh in” on the policies promoted by the group: AT&T, Comcast, CTIA – The Wireless Association, the National Cable & Telecommunications Association, Time Warner Cable, and Verizon.

Among the NBCSL’s roundtable members: AT&T, Comcast, Time Warner Cable, and Verizon

For the fourth consecutive year, Verizon hosted its Black History Month open house at the Reginald F. Lewis Museum in downtown Baltimore. This year, among Verizon’s special guests: Maryland Senator and president-elect of the National Black Caucus of State Legislators Catherine Pugh. Comcast has also opened its checkbook to the NBCSL. Among the contributions — $50,000 to form the “NBCSL/Comcast Broadband Legislative Fellowship” to “increase efforts to conduct research and develop solutions regarding broadband adoption among African Americans.”

Opening up a competitive, lower-priced broadband alternative owned by the citizens of Baltimore is not one of Pugh’s favored solutions to be sure.

The NBCSL has been more than a little preoccupied with the business agendas of its corporate members. The group’s glowing endorsement of the Comcast-NBCUniversal merger was so positive, Comcast continues to present the group’s submission urging approval of the merger on its website. In 2011, the NBCSL signed on to the campaign to get government approval of the now-dead merger of AT&T and T-Mobile USA, claiming it was in the best interests of African-Americans. Just this month, Time Warner Cable quoted the group’s comments on the dispute between the cable company and CBS on its website.

Stop the Cap! has refuted claims that public broadband is a financial failure in the past. Read our fact check here.

Although Comcast has been the dominant cable provider in Baltimore for years, its monopoly status is “de facto” only, because federal law prohibits exclusive cable franchise agreements. That being said, no other well-known cable provider will agree to offer service in competition with another. Overbuilders — small private entities that have business plans that depend on competing with incumbent operators, are few and far between. For most Americans, the only cable competition comes from satellite providers or the phone company. Satellite television lacks a broadband option and Verizon’s local broadband infrastructure is limited to providing DSL service.

Tonjes

Tonjes hopes the possibility of a public broadband alternative might shake up the city’s broadband landscape, but not every neighborhood is now passed by the city’s fiber ring.

Phillip “It worked for Qwest so why not community broadband” Dampier

While doing research on another story, I recently uncovered a fascinating legal case that set an important precedent on whether it is right for a community to hold a referendum before authorizing a new telecommunications provider to offer service in a community.

Opponents of community-owned broadband networks routinely claim such services are “undemocratic” because they can exist without the majority support of the community they propose to serve. In 2001, Qwest (now CenturyLink) ran into just such a “majority-rules” provision in Boulder, Colo. that companies like AT&T and Time Warner Cable advocate should be a law everywhere.

A provision in Boulder’s Charter required that voters in a municipal election approve any cable franchise before it was granted by the city. Wishing to avoid the cost of such an election, Qwest sued the City of Boulder and asked for summary judgment to declare the policy unlawful. Chief Judge Lewis Babcock found Qwest’s argument compelling enough to invalidate the city’s mandatory referendum provision.

Qwest argues that the language in [U.S. Federal Law] 47 U.S.C. § 541 regulating franchising authorities is in direct conflict with [Boulder’s] § 108’s mandatory election provision. I agree.

First, the Act provides guidance to, and restrictions on, “franchising authorities.” Section 541’s requirements are directed toward franchising authorities. See 47 U.S.C. § 541(a)(1), (3), (4). Under the statute, a “franchise” is “an initial authorization, or renewal thereof,” issued by a franchising authority to construct or operate a cable system. 47 U.S.C. § 522(9). A “`franchising authority’ means any governmental entity empowered by Federal, State, or local law to grant a franchise.” 47 U.S.C. § 522(10) (emphasis added).

Here, Qwest approached City officials to seek franchise approval. The City granted a revocable permit to Qwest, and agreed to “grant a cable television franchise authorizing [Qwest] to provide cable television service within the City for a term of years” once an affirmative vote by the qualified taxpaying voters occurred. There is no evidence that the City negotiated the franchise in any manner, or put any additional restrictions or caveats on the franchise beyond voter approval. City officials follow the will of the voters with no additional scrutiny or decision-making. Thus, the City has abdicated franchising authority to the City’s voting citizens. These voters cannot, by the plain terms of the statute, be a “governmental entity empowered by Federal, State, or local law to grant a franchise.” 47 U.S.C. § 522(10). Therefore, direct conflict between the federal and local laws exist, as it is impossible for the franchise to be granted by a governmental entity as required by the Act, and simultaneously granted by the voters as required in § 108.

Second, § 541 imposes numerous and specific requirements on franchising authorities. The statute forbids exclusive franchises, see § 541(a)(1); unreasonable refusals to award additional competitive franchises, see id. at (a)(1); requirements that have the purpose or effect of prohibiting, limiting, restricting, or conditioning the provision of a telecommunications service by a cable operator, see id. at (b)(3)(B); ordering a cable operator or affiliate thereof to discontinue the provision of a telecommunications service, discontinuing the operation of a cable system by reason of the failure of a cable operator to obtain a franchise or franchise renewal, see id. at (b)(3)(C)(i)-(ii); or requiring a cable operator to provide any telecommunications service or facilities as a condition of the initial grant of a franchise. See Id. at (b)(3)(D).

A franchising authority has affirmative requirements as well. It must assure that access to cable service is not denied to any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides, see id. at (a)(3); and allow the applicant’s cable system a reasonable period of time to become capable of providing cable service to all households in the franchise area, see id. at (a)(4)(A).

However, by allowing voters unfettered and unreviewed discretion to grant or reject a franchise, § 108 is in conflict with virtually every provision in § 541. Because only WOWC has received a franchise, voters could effectively grant WOWC an exclusive franchise simply by refusing to vote affirmatively for a second operator. See id. at (a)(1). Voters could unreasonably refuse to award an additional competitive franchise, as they could deny a franchise for any reason or for no reason. See id. Qwest correctly argues that § 108 “provides voters with the unfettered and unreviewable discretion either to grant or deny a cable television franchise for any reason, or for no reason at all.”

In brief, the judge found cable franchises are granted or denied at the municipal level by local government, not through referendums. The City of Boulder was effectively abdicating its responsibility under federal law to manage the franchising process itself. There is no provision in federal law that allows citizens to directly vote a cable franchise agreement up or down, although voters can use the ballot box to remove local officials who do not represent the will of the majority.

More importantly, the judge recognized that turning the process over to local citizenry could unintentionally hand an incumbent provider a monopoly just by voting down any would-be competitor. Why would local citizens oppose competition? As we’ve seen in the fight for community broadband, incumbent providers will spend millions to keep would-be competitors out with a variety of scare tactics and propaganda. Providers have suggested community networks are guaranteed financial failures, will result in yards being torn up to install service, might result in local job losses, and will raise taxes whether residents want the service or not.

Judge Babcock also found that laws that could limit effective competition to incumbent cable companies are in direct conflict with the 1992 federal Cable Act:

The legislative history clearly supports the proposition that Congress was focused on fostering competition when passing the 1992 Act. The Senate Report regarding the Act states, “[I]t is clear that there are benefits from competition between two cable systems. Thus, the Committee believes that local franchising authorities should be encouraged to award second franchises.”

[…] Given the clear intent of Congress to employ § 541 as a vehicle for promoting vigorous competition, I conclude that § 108 is in conflict. Section 108 serves only to provide a significant hindrance to the competition that Congress clearly intended to foster. It forces the potential franchiser to spend money, time, advertising, and logistical support on an election. Thus, § 108 “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”

Perhaps the time has come to raise similar challenges in states where legislatures have passed community broadband bans or placed various impediments on providing service. If Qwest can successfully argue that such rules are designed to limit competition, local communities can certainly argue the panoply of anti-competition laws that were written by and for incumbent cable and phone companies deserve the same scrutiny.

Referendums are an inappropriate way to approve the entry of new competitors.

Comcast has been a part of life in Muskegon, Mich. for decades, thanks in part to an unusually long 25-year franchise agreement signed when President Reagan was serving his last year in office. In 1988, the Berlin Wall was still in place, Mikhail Gorbachev formally implemented glasnost and perestroika, Snapple appeared on store shelves nationwide, and compact discs finally outsold vinyl records for the first time.

All good things must come to an end and Comcast’s contract to serve will finally expire Aug. 2. City officials want residents to understand that after two plus decades, it is appropriate to take some time to consider all the options. But a 2007 law has cut that time of reflection down to a month, and removed most of the powers Michigan communities used to have to select the best cable operator for their community. It’s a fact of life Comcast is well aware of, and it underlined that point by tossing a carelessly written, pro forma/fait accompli franchise renewal proposal into the mail that left Muskegon’s civic leaders cold. But if they fail to act fast, Comcast will win automatic approval of whatever it proposes to offer the 38,000 residents of the western Michigan city for years to come.

Statewide Video Franchising in Michigan

In December 2006, primarily at the behest of AT&T, the Michigan legislature passed a new statute that would create a uniform, statewide video franchise agreement template that providers could use to apply for or renew their franchises to operate. In theory, establishing a uniform, simplified franchise application would lead AT&T to quickly wire Michigan with U-verse, its competing cable/broadband/phone service, and bring dramatically lower prices for cable service and fewer complaints because of greater competition.

The Uniform Video Services Local Franchise Act was remarkably similar to those passed in more than a dozen other states — no mistake considering it was based largely on an AT&T-written draft distributed and promoted by the American Legislative Exchange Council (ALEC), an AT&T-backed third-party group that encourages state legislatures to enact corporate-ghostwritten bills into law.

Under the new law, much of the power reserved by local officials to approve cable franchises and enforce good customer service was stripped away and handed to the state’s Public Service Commission. The deregulation measure tipped the balance of power in providers’ favor, making it possible to do business on their terms, not those sought by community leaders. Among the law’s provisions:

1. Communities are still bound by the terms of their existing franchise agreements, but providers can break the legacy contracts for any reason, forcing a new agreement under the new statewide franchise law. If a provider wants out, they can abandon the community or transfer operations to a new provider with 15 days advance notice and no prior approval.
2. A franchise renewal proposal will be automatically approved if a city does not reject it within 30 days.
3. Communities cannot unreasonably restrict providers from access to public rights-of-way, an important consideration for AT&T’s U-verse, which requires the placement of large, sometimes noisy utility cabinets (a/k/a “lawn refrigerators”) to connect its fiber network with residential copper wiring.
4. Communities are limited to collecting up to 5% of video revenue in franchise fees and up to 2% to support Public, Educational, and Government (PEG) channels. In the past, some communities asked cable operators to wire schools, libraries, and local government offices at no cost, and several negotiated other forms of support for PEG channels, which allow local citizens to view town board meetings and create and distribute locally produced programming. Today, those agreements are only possible on a voluntary basis, without any threat if a provider refuses, they will get their franchise request rejected.
5. Providers are no longer obligated to honor agreements setting timetables to wire communities. Instead, they can handpick areas to be served, except in cases where racial or income discrimination can be proven.

Since the law was clearly designed to help new entrants like AT&T’s U-verse and Verizon FiOS, Michigan’s incumbent cable companies either demanded the same rights, remained neutral, or halfheartedly protested the proposed law suggesting it unfairly benefited new competitors. Cable companies, for example, would not benefit from laws throwing out buildout requirements because their networks are already largely complete.

But once signed into law, cable operators did begin asking cities to voluntarily adopt the new uniform statewide video franchise. Muskegon joined most other Michigan cities in declining the invitation.

AT&T did begin wiring Michigan for U-verse service, although there is no evidence it would not have done so had the Act never been signed into law. But that has not helped Muskegon, because the dominant phone company in the area is Frontier Communications. Frontier has so far shown no interest in building a competing cable TV service, so the only competition residents get are from two satellite companies.

City of Detroit v. State of Michigan and Comcast

Soon after the statewide franchise law was passed, Comcast notified the city of Detroit it could take the proposed renewal of its existing 1985 franchise agreement and go pound salt. The franchise agreement with the city expired in February 2007, just a month after the new law took effect. It was a new day, Comcast told city officials, and the company offered its own proposal for renewal — a 5% take-it-or-leave-it franchise fee and nothing else. Comcast even rejected the city’s counteroffer to include a 2% PEG fee, permitted under the new law.

Franchise negotiations went nowhere, but Comcast had nothing to fear. The city did not properly reject their franchise renewal offer so, as far as the company was concerned, it automatically won a franchise renewal.

The city sued both Comcast and the State of Michigan in the summer of 2010 alleging the statewide law violated the federal Cable Act, usurped local “home rule” authority, and that Comcast was illegally trespassing in the city without a franchise agreement. The Michigan Attorney General took Comcast’s side, defended the state law, and helped the cable company argue its case in court.

Comcast did not want the case heard and asked for its immediate dismissal, which was rejected.

In the summer of 2012, the judge split the decision between the city and Comcast. The judge found that Comcast had probably been operating illegally in Detroit since 2007 and owes the city damages. The judge also found parts of the state law troubling enough to invalidate. In particular, he emphasized cities do have a clear right to reject franchise proposals offered by cable operators and that in many cases those operators must adhere to their existing franchise agreements until they expire. Cities also have the right to protect and manage their rights-of-way, ending the perception cable and phone companies have the right to place hardware almost at-will in public areas.

Comcast wants to avoid paying Detroit damages for potentially operating illegally without a valid franchise.

The judge found nothing inherently faulty with the concept of statewide video franchising, nor did he rule that providers are required to serve everyone in a geographic area or that cities are allowed to enforce local customer service standards.

The impact of the statewide law, even after the judge’s ruling, still erodes local control. As pre-2007 franchise agreements expire, it is highly unlikely cable operators will continue to offer free service to municipal buildings, will not accept requirements to provide “universal service” or even language requiring wiring of every home that meets a “homes per mile” test. Some cable operators are even closing local customer service centers that used to be required in many franchise agreements.

Comcast did not appreciate the court ruling, sought to have it set aside, and failed. Now the Court of Appeals will likely weigh in on the case by the end of this year. Comcast is particularly concerned about the prospect of paying damages to the city of Detroit for illegally operating without a valid franchise. The judge hearing the case considered that a very real possibility and requested submissions from all parties about how much Comcast should pay the city.

Muskegon officials cited the judge’s rulings in the Detroit case in their letter rejecting Comcast’s proposed renewal agreement. The city wants to renegotiate certain terms regarding its PEG channels, still wants complimentary service to public buildings, and requests cable service be extended to the Hartshorn Marina.

Six Years Later, Cable Rates and Complaints Still Rising, the Competition is Fleeting, and Many Believe the Law Has Achieved Nothing

The Michigan Public Service Commission is tasked with reporting annually to the legislature and the public about the impact of the AT&T-sponsored law. The PSC’s broad conclusion is that the new law is working:

Increases in subscribers as well as the emergence of another video/cable provider are positive signs for the video services industry in the state of Michigan. Both franchise entities and providers have continued to report that video/cable competition is continuing to grow. Growth in competition has been observed each year since the Commission began issuing this report. In addition to the increase in competitive providers, companies continued to invest hundreds of millions of dollars into the Michigan video/cable market in 2012.

As the Act enters its seventh year of existence, signs of progress and competition continue to be evident. It appears that both franchise entities and providers perceive that providers are offering more services to customers. In addition, more areas throughout Michigan are beginning to have a choice of video/cable service providers.

But in the same report, the PSC admits the overwhelming consensus among those in individual communities is the law has made little to no difference in competition or pricing. For example, every provider has continued to raise their rates, particularly after promotional new customer packages expire. Much of the savings calculated in Michigan took introductory prices into account, such as when AT&T U-verse entered a market. After 1-2 years, those savings evaporate. AT&T has increased its pricing just as often as dominant cable providers Comcast and Charter.

The PSC touts that 15 new competitors have begun offering service in Michigan since the law was enacted. But besides AT&T’s U-verse., the majority of those new entrants are municipal telephone companies, small/family owned rural cable companies, or providers that specialize in serving only apartment complexes or condos. All but AT&T serve only tiny areas in Michigan and most have customers that number only in the hundreds to low-thousands.

Michigan’s New Competitors

• Ace Telephone Company of Michigan Inc.
• AT&T (U-verse)
• Bloomingdale Communications, Inc.
• Drenthe Telephone
• Martell Cable Service Inc.
• Mediagate Digital
• Michigan Cable Partners (MICOM Cable)
• Packerland Broadband
• Sister Lakes Cable TV
• Southwest Michigan Communications Inc.
• Spectrum Broadband
• Summit Digital
• Sunrise Communications LLC
• Vogtmann Engineering
• Waldron Communication Company

How many new Michigan customers has this competition netted since 2011? 2,116

The overwhelming majority of Michigan communities still have just one cable operator and no competitor. AT&T U-verse accounts for almost all the communities reporting a second provider.

Complaints have also been higher every year the statewide franchise law has been in effect. In 2007, there were 615 formal complaints made to the PSC. Every year thereafter, the number of complaints exceed 2007 levels, ranging from 757 in 2011 to 1,074 in 2010. Comcast is by far the worst offender — 51 percent. AT&T and Charter had a smaller percentage of complaints, 15 and 14 percent respectively. The majority of complaints among all providers deal with billing issues.

Since the new law took effect, many communities have felt so disempowered, they stopped reporting local complaints to the PSC. But among those who have, the story is the same in states without statewide franchise laws:

• System updates not completed as promised. Large numbers (of residents) have gone to satellite;
• Upgrades needed to allow for better reception and channel selection;
• There are two providers in our area, yet little increase in competition;
• Cost to extend service to reach potential customers affects competition;
• Cable provider left when switching from analog to digital, stating not enough customers to afford the changeover. Now only satellite is available;
• No broadband/high-speed Internet service in many townships;
• No phone, cable service available;
• Michigan has totally failed bringing affordable Internet service to this community, and has prevented our township government from providing the needed services.

The perceived impact of the 2007 law isn’t so great either:

• Communities lost in-kind and other services from the incumbent provider;
• Cable rates continue to increase;
• Zero value added and has eroded local control of franchising;
• Customers have a choice now, but rates are still higher;
• Providers simply poach competitor’s customers as evidenced by flat franchise revenue; as one increases the other decreases;
• This statute has proven to accomplish literally nothing for municipalities and only serves to benefit providers;
• The Act did nothing to improve service.