The Chair of the New York State Public Service Commission announced today that the Commission is seeking a possible revocation of Charter Communication’s franchise to serve New York City and a $1 million fine payable to New York State for failing to meet its network buildout obligations agreed to as part of its 2016 merger with Time Warner Cable.

“It is critically important that regulated companies strictly adhere to the state’s rules and regulations,” said Commission chair John B. Rhodes. “If a regulated entity like Charter’s cable business decides to violate or ignore the rules, we will take swift action and hold them accountable to the full extent of the law.”

The most serious potential consequence is the revocation of Charter’s franchise agreement with New York City, which would force the cable operator out of the most important media market in the country. The Commission has opened an official proceeding to investigate whether Charter has tried to achieve its network expansion targets by using addresses in New York City where the company was allegedly already offering service or should have been.

Is Charter Meeting its Buildout Obligations in New York?

One of the key requirements Charter had to meet in New York in return for approval of its buyout of Time Warner Cable was an expansion of its cable footprint to at least 145,000 additional New York homes or businesses over a four-year buildout period. These “passings” — where service would be available for the first time, had to be in areas where the company was not already compelled to offer service through its existing franchise agreements. This requirement was designed to overcome the cable company’s traditional objections to servicing a location because of inadequate Return On Investment. A detailed audit performed by the Commission discovered more than 14,000 ineligible passings included by Charter in its December milestone report. Once these addresses were disqualified, Charter fall short of its obligation by more than 8,000 passings. As a result, this triggers an automatic $1 million fine, payable each time Charter fails to meet its agreed-upon buildout milestones.

New York City officials were concerned that Charter’s most recent milestone report asserted the cable company expanded service to 12,467 addresses in New York City, despite an existing franchise agreement with the city that included requirements that would guarantee those addresses either already had or should have had cable service available. If those allegations are proven true, Charter attempted to meet its buildout obligations by fudging the numbers.

“Metropolitan NYC is one of the most-wired cities in America and the world, and essentially, 100% of the NYC areas are served by one or more 100 Megabits per second (Mbps) wireline providers
such as Verizon FiOS, Cablevision, RCN, and Charter itself,” the Commission wrote.

The PSC’s staff conducted detailed reviews of 490 of those addresses claimed by Charter as having cable service available for the first time. None of them were found to be valid for inclusion in Charter’s service expansion reports, either because they were already serviced by Charter’s network or received service from a competing provider offering at least 100 Mbps service, or both.

In two instances, the staff found Charter was claiming new service expansion in buildings clearly already covered by the city’s existing franchise agreement.

“In a more egregious example, Charter also listed the Reuters Building as countable toward the December 2017 target in Charter’s January 2018 filing, which has a listed address of 3 Times Square,” the PSC wrote. “Staff could not find any photos of the building prior to 2014 beside aerial views, but construction was completed in 2001, well before the effective date of the current franchise agreements.”

In either case, Charter may be stuck between a rock and a hard place. If the company argues it did, in fact, provision cable service only recently, Charter probably materially breached its franchise agreement with the city, providing immediate grounds to begin franchise revocation proceedings under PSL §227.11. If Charter argues instead it was in compliance with its franchise agreement and did in fact already offer cable service to those addresses, Charter would be subject to an investigation about why it misled the regulator by claiming those locations as “new passings” when they were not.

Franchise Fee Dispute

A second controversy involves the amounts of franchise fee payments payable to New York City. City officials claim those payments have declined year-over-year since Charter completed its merger with Time Warner Cable.

Rhodes

A decline in franchise fee payments could be the result of cord-cutting, which has taken its toll on cable TV subscriptions at almost every cable company in the country. The fewer cable TV subscribers, the more likely revenue declines are going to occur, which in turn cuts franchise fee payments.

Charter Communications’ business model is also a departure from its predecessor, Time Warner Cable. In addition to ending many pricing promotions, Charter also stopped marketing stripped down, budget-conscious television packages. Many customers also faced dramatic rate increases as a result of Charter’s new bundled TV packages, which in some cases required customers to pay substantially more to keep all the channels included in their original Time Warner Cable package. As a result, many customers changed providers. Others decided to “cut the cord” and drop television service altogether while retaining broadband. The franchise fee does not apply to internet or phone service — just television.

Still, the PSC wants to audit Charter’s books to verify the company’s accounting has not departed from Time Warner Cable’s interpretation of the franchise fee agreement and unfairly undercut the city.

Charter has been given 21 days to respond with clear and convincing evidence it is not in violation of its franchise agreement with New York City or its merger obligations with New York State. If the Commission does not receive satisfactory evidence by the deadline, it is likely to begin hearings on whether Charter has committed material breaches of its agreements serious enough to warrant fines and/or franchise revocation.

A bipartisan group of senators from some of America’s most rural and broadband-challenged states blasted the mapping skills of the Federal Communications Commission in a hearing Tuesday.

The senators were upset because the FCC’s Universal Service Fund will pay subsidies to extend wireless connectivity only in areas deemed to have inadequate or non-existent coverage. The FCC’s latest wireless coverage map is the determining factor whether communities get subsidies to expand service or not, and many in attendance at the Communications, Technology, Innovation, and the Internet subcommittee hearing quickly called it worthless.

Sen. Jerry Moran (R-Kan.) said the map’s “value is nil,” quickly followed by the Subcommittee chair Sen. Roger Wicker (R-Miss.) who added, “we might as well say it, Mr. Moran, that map is utterly worthless of giving us good information.”

“The simple answer is: it’s garbage in, garbage out,” said Steve Berry, CEO of the Competitive Carriers Association, which counts several small, rural cell phone companies as members.

This FCC map shows (in blue) areas identified as eligible to receive wireless subsidies to expand service where little or none exists today. (click map to expand)

The latest version of the map was heralded by the FCC as a significant improvement over the 2012 map used during the first round of funding. But critics like Berry claimed the map still relies entirely on carrier-provided data, much of it based on network capacity, and there is an incentive for existing wireless carriers to overestimate coverage because it assures funds won’t be given to potential competitors to strengthen their cellular networks.

The FCC claimed it gave carriers new benchmarks to meet in its latest map, including a request to only identify an area as covered if it achieves 80% certainty of coverage at 4G LTE speeds of 5 Mbps or more. To identify underserved zones, the FCC asked carriers not to identify areas that passed the first test as served if cell towers in that zone exceeded 30% of capacity. But Berry noted the FCC did not include a signal strength component, which means a carrier could report a significant area as getting adequate coverage based on the capacity of their network in a strong reception zone, even if customers nearby reported ‘no bars’ of signal strength or coverage that dropped completely once indoors.

Sen. Wicker

Senators from Kansas, New Hampshire and Mississippi were astonished to see maps that claimed virtually 100% of all three states were fully covered with mobile broadband service. The senators rejected that assertion.

Sen. Maggie Hassan (D-N.H.) has devoted a section on her website to collecting reports from New Hampshire residents getting poor cell phone reception, and she has been a frequent critic of the FCC’s coverage maps which she has repeatedly called inaccurate.

In northern Mississippi, wireless coverage is so poor the Mississippi Public Service Commission launched an initiative to collect real-world data about reception through its “Zap the Gap” initiative. But the FCC’s latest map suggests the problem is solved in the most signal-challenged areas in the northern part of the state, with the exception of small pockets in the Holly Springs National Forest, the Enid Lake area, areas east of Coffeeville, parts of Belmont, and areas east of Smithville.

The four major national wireless carriers suggest there is no problem with wireless coverage in Mississippi either. AT&T claims to reach 98% of the state, Verizon Wireless 96.43%, T-Mobile 66.36%, and Sprint 30.92%. Regional carrier C Spire claims 4G LTE coverage that falls somewhere between T-Mobile and AT&T in reach.

Sen. Jon Tester (D-Mont.) told the subcommittee in his state, the FCC’s maps have little resemblance to reality, showing 4G LTE speeds in areas where no cellular reception exists at all.

“The FCC is wrong, they screwed up, we’re getting screwed because they screwed up, so how do we fix it?” Tester asked. “There has got to be a way to get the FCC’s attention on this issue. We’ve got to do better, folks, it’s not working.”

Mississippi’s program to report cellular coverage gaps.

Independent cell phone companies that specialize in serving areas the larger carriers ignore are hamstrung by the FCC and its maps, according to Mike Romano, senior vice president for policy for NTCA – The Rural Broadband Association — a trade group and lobbyist for smaller rural providers. Romano told the subcommittee if any cellular company reports coverage to even one household in a census block (which can cover a large geographic area in rural states), that entire block is ineligible for Connect America Fund subsidies.

The FCC, rural carriers complain, is relying on small wireless companies to serve as the map’s fact checkers and forces them to start a costly challenge procedure if they want to present evidence showing the map is wrong. Such proceedings are expensive and time-consuming, they argue. Even if successfully challenged, that does not win the companies a subsidy. It only opens the door to a competitive bidding process where challengers could face competing bids from larger companies that made no effort to challenge the map data.

A group of senators signed a joint letter to FCC Chairman Ajit Pai complaining about the accuracy issues surrounding the FCC’s wireless map:

Dear Chairman Pai:

We write this letter to express our serious concerns that the map released by the Federal Communications Commission last week showing presumptive eligible areas for Mobility Fund Phase II (MF II) support may not be an accurate depiction of areas in need of universal service support.  We understand that the map was developed based on a preliminary assessment from a one-time data collection effort that will be verified through a challenge process. However, we are concerned that the map misrepresents the existence of 4G LTE services in many areas.  As a result, the Commission’s proposed challenge process may not be robust enough to adequately address the shortcomings in the Commission’s assessment of geographic areas in need of support for this proceeding.

MF II is intended to provide $4.53 billion in support over 10 years to preserve and expand mobile coverage to rural areas. These resources will be made available to provide 4G LTE service where it is not economically viable today to deploy services through private sector means alone.  Having consistently traveled throughout rural areas in our states, it appears that there are significant gaps in mobile coverage beyond what is represented by the map’s initial presentation of “eligible areas.” To accurately target support to communities truly in need of broadband service, it is critical we collect standardized and accurate data.

For too long, millions of rural Americans have been living without consistent and reliable mobile broadband service.  Identifying rural areas as not eligible for support will exacerbate the digital divide, denying fundamental economic opportunities to these rural communities.  We strongly urge the Commission to accurately and consistently identify areas that do not have unsubsidized 4G LTE service and provide Congress with an update on final eligible areas before auctioning $4.53 billion of MF II support.

In addition to Senator Roger Wicker (R-Miss.), the letter was signed by Maggie Hassan (D-N.H.), Jerry Moran (R-Kan.), Angus King (I-Maine), Cory Gardner (R-Colo.), Amy Klobuchar (D-Minn.), Pat Roberts (R-Kan.), Roy Blunt (R-Mo.), Gary Peters (D-Mich.) and Thom Tillis (R-N.C.).

The Senate Commerce, Science and Transportation Subcommittee held a hearing on broadband infrastructure needs. The FCC’s wireless broadband coverage map was a main issue in contention. (Note, the hearing begins at the 30:00 mark.) (2:05:00)

The Democrats are countering the Trump Administration’s economic proposals with plans of their own they broadly call “A Better Deal.”

Democrats in Washington are countering President Donald Trump’s lack of commitment to earmark funding for rural broadband with a $40 billion plan of their own that is part of a broader trillion-dollar infrastructure investment package released Wednesday.

The plan, “Returning the Republican Tax Giveaways for the Wealthy to the American People,” specifically targets funding for a new, last-mile focused, broadband expansion program that would target funding specifically to providing broadband service to the homes and businesses in the country that cannot get the service now.

“The electricity of 2017 is high-speed Internet,” according to the Democrats. “While the private sector has delivered high-speed internet to many, millions of Americans in less profitable rural and urban areas have been left out.”

Rural broadband is expected to become a campaign issue in the midterm elections, as Democrats push their new working and middle class recovery program they call “A Better Deal,” reminiscent of President Franklin D. Roosevelt’s “New Deal” program during the Depression of the 1930s.

The Democrats claim they will do a better job overcoming the digital divide by forcing providers to compete for public funding. In contrast, the Trump Administration’s general infrastructure program offered $200 billion for all types of infrastructure projects, with no funding earmarked for broadband. But most of that money can only be unlocked if a private company enters into a public-private partnership with the government and agrees to invest even more in private dollars than the federal government will offer in supplementary funding.

The Democrats also claim their broadband investment program will be open to public providers like municipalities, co-ops, and publicly owned utilities, not just private companies. The Republicans have generally opposed municipal broadband projects, although there are some exceptions in rural areas where local and state officials share the frustration of bypassed local residents.

Manchin

“If you actually get out to Trump country and talk to folks, you will discover that they are angry and frustrated and pissed off that the companies won’t serve them (because it is too expensive to provide service) and won’t let them deploy their own networks,” wrote Harold Feld, senior vice president at the consumer advocacy group Public Knowledge, in a Facebook post this week. “Traditionally, rural Republicans have been eager to use the tools of government to bring essential services to rural America. If this helps pressure rural Republicans to break with the anti-government mantra and return to traditional bipartisan approaches to bringing service to rural America, so much the better.”

Moderate Democrats in states with large rural populations are especially excited by the Democratic plan.

“The way we speak in plain-speaking West Virginia, this is a really good deal,” said Sen. Joe Manchin III (D-W.V.) at a news conference Thursday. “All of you who’ve come from urban areas, you take this for granted.”

The rural broadband funding is part of a much larger $1 trillion investment package paid for by reversing certain tax breaks. The corporate tax rate, which was slashed from 35 percent to 21 percent under the Republican plan, would be raised to 25 percent under the Democratic plan. Democrats are also seeking to restore estate taxes on couples earning over $11 million annually.

Cheyenne Mayor Marion Orr

An effort to pass legislation that would award state grants to help rural Wyoming communities get high-speed internet was dead on arrival as far as telecom industry lobbyists were concerned.

So they “fixed it” with a secret substitute bill quietly written by the state’s telecom companies.

The replacement legislation effectively turns the state grant program into a fund for the state’s dominant telecom companies — CenturyLink and Charter Communications.

Stop the Cap! has learned the replacement bill gives high priority to eliminating potential competition by blocking funding for communities to establish their own public broadband alternatives to the phone and cable company if those companies already offer service anywhere inside the community.

The bill also seeks to define the Wyoming government’s involvement in broadband as a non-adversarial partnership with the telecom industry, according to Wyoming Senate Minority Leader Chris Rothfuss (D-District 9).

Under the substitute bill, Rothfuss said the telecom industry will now have a say over how the state awards grant funds. The industry is concerned tax dollars could be given to their competitors to offer service in communities where CenturyLink and Charter already provide modest service. But nothing in the bill would keep either company from collecting state funds for themselves, to expand broadband into unserved areas.

The attempt to switch the bills during a state senate committee meeting was met with surprise and outrage by Cheyenne Mayor Marion Orr.

“I shouldn’t have been surprised to learn industry completely re-wrote proposed broadband legislation to their favor as a ‘substitute bill’ in legislative committee today,” Orr wrote on her Facebook page on Feb. 19. “The substitute bill is substantially different than the original bill. And it wasn’t posted online or anywhere for anyone except insiders to have access to. CenturyLink and Spectrum are bullies. It’s wrong, and they are hurting Cheyenne and other Wyoming communities from gaining affordable access.”

The committee working on the bill may have hoped to switch the bills without notice, but Orr was having none of that.

“As soon as I realized the committee was working a different version that none of us had access to – I spoke up,” she said. “The committee set it aside and will hear it again tomorrow night. This is NOT good governance and the committee realized it. I will stay on this. Guaranteed.”

The substitute bill appears to have subsequently passed and is still facing review by the state legislature.

Orr remains furious Wyoming’s telecom companies that have not delivered on ubiquitous, affordable broadband will now have more power than ever to determine who gets service, who pays to extend service, and what companies can provide it.

“It’s as important as turning on electricity, it’s as important as turning on a tap and having water, it’s an absolute must if we’re going to grow,” Orr said.

Despite the massive amount of extra money from the Trump Administration’s corporate tax cuts generating huge revenue spikes for America’s telecom companies, Frontier Communications disappointed investors with today’s news it was suspending its quarterly cash dividend to shareholders after reporting a net loss of $1.03 billion on revenue of $2.2 billion during the fourth quarter of 2017, despite a $830 million tax benefit resulting from the reduction in federal tax rates.

Frontier saw revenue declines across almost every product category: Data and Internet services, $939 million (down 7.3%); Voice services, $687 million (down 11.2%); Video services, $310 million (down 15.1%), but the company slightly improved its churn rate (customers coming and going) to 1.83% for Frontier Legacy service areas (areas not acquired from Verizon or AT&T) and 2.22% for customers in California, Texas, and Florida acquired from Verizon (compared with 1.92% and 2.33% respectively in the third quarter of 2017).

The losses are attributable to:

• Frontier DSL is not competitive with cable broadband in most Frontier Legacy service areas. Cable companies continue to steal customers away with better value broadband packages at much faster speeds;
• Frontier FiOS delivers much better internet speeds, but customers in former Verizon service areas are upset about poor customer service and on-time repair visits and billing errors;
• Frontier landline customers have been disconnecting for years, especially in copper-only service areas.
• Frontier FiOS TV customers are getting better pricing and promotional deals from competing cable and satellite providers, or are cutting the cord entirely.

The average Frontier Legacy customer pays $65.11 a month. Customers with Frontier FiOS in California, Texas, and Florida pay an average of $107.35 a month.

Despite the anemic results, Frontier CEO Daniel McCarthy was optimistic.

“Our fourth quarter results highlight the ongoing progress on our key initiatives to improve customer retention, enhance the customer experience, and align our cost structure,” McCarthy said in a press release. “We are pleased with continued improvement in subscriber trends and churn in our California, Texas and Florida (CTF) markets, and the continued operating efficiencies achieved in the fourth quarter.”

But McCarthy rattled investors with news Frontier’s board of directors had voted to suspend the company’s dividend payout to shareholders, one of the key reasons investors buy Frontier common stock. Frontier intends to use the $250 million it would have handed shareholders to pay down the company’s massive debts.

In 2018, Frontier will pay more in interest on its outstanding debt ($1.5 billion) than it will spend on network upgrades and other capital expenditures ($1.0 billion to $1.15 billion). Most of the company’s debt comes from Frontier’s aggressive history of acquisitions, buying landline service areas from Verizon and AT&T.

Despite predictions by Frontier’s executives that its $10+ billion acquisition of Verizon service areas in California, Texas and Florida would deliver dramatically better results for Frontier and its shareholders, a botched transition and ongoing complaints about poor customer service and billing errors alienated Frontier’s adopted customers. Many canceled service and have no plans to return.

With Frontier’s financial condition concerning some financial analysts, Frontier is considering selling off its newest service areas to raise money.