The Federal Communications Commission is pushing hard to free up additional spectrum in some unlikely extremely high frequency ranges — some at 95 GHz or higher, for the next generation of wireless services.

Just a year ago in 2017, the FCC wrapped up its latest spectrum auction for the higher end of the UHF TV band, to be repurposed for mobile service use. But now the agency is seeking to find and reassign underused spectrum in much higher frequency bands that could be used for services like 5G wireless, machine-to-machine communications, intelligent road and vehicle networks, and other uses yet to be invented or envisioned.

FCC Commissioner Jessica Rosenworcel made it clear that smart spectrum allocation was critical for next generation wireless services.

“The point is the list is long — and we are looking at midband and millimeter wave to power the 5G future,” Rosenworcel said. “The propagation challenges are real, but so is the potential for capacity with network densification. Of course, what we need to do next is get these airwaves to market and unconditionally hold an auction this year.”

The FCC is contemplating auctions covering these frequencies in 2018:

3.5 GHz

Widely expected to draw the most interest, the Citizens Broadband Radio Service band was originally intended primarily for unlicensed users, but the wireless industry has lobbied heavily to get much of this spectrum reassigned for traditional long-term licensed use. Although very high frequency, the 3550-3700 MHz “innovation band” will have plenty of wide range of frequencies open for wireless data and mobile services. The wireless industry wants to deploy LTE service on this band, but they will likely compete with cable operators that are seeking their own stake of frequencies to launch their own wireless services.

This band will likely support last mile wireless connections at gigabit speed, fixed wireless broadband, and even in-home Wi-Fi that is significantly better than what you have now.

Because the band is so attractive, several different users are competing over who will be portioned what spectrum. The cable and phone companies want more for themselves, but other users, including consumers, want to reserve enough spectrum for unlicensed applications. The concern is deep pocketed companies may crowd out innovators and start-ups.

3.7 to 4.2 GHz

Some consumers may have accessed services on these frequencies without ever realizing it. This is the home of the “C-Band,” recognizable to any home satellite dishowner of the 1980s and 1990s. This range of frequencies is set aside for line-of-sight, very low powered satellite television — the kind that used to require a 10-12 foot wide satellite dish in the backyard to receive. FCC Chairman Ajit Pai wants to open the band up to be shared with 5G wireless broadband, which has caused considerable controversy among satellite users who fear devastating interference.

There are proposals and counter proposals from the satellite industry and wireless companies over how to manage sharing this band. Most are coalescing around the idea of sequestering 100 MHz of spectrum at the low-end of the band and using 3700-3800 MHz for high-speed wireless broadband. Some want satellite operators to clear out of this section of frequencies voluntarily, others propose compensation similar to what was given to television stations to relocate their channel positions. Google is pushing for a plan that would offer mobile 5G service in large urban areas and 25 Mbps – 1 Gbps fixed wireless broadband in rural and residential areas.

But satellite companies and many satellite users are fearful of the impact of interference. Because satellite signals use very low power transponders on the satellite, ground based wireless broadband interference could wipe out satellite reception.

Tom Taggart, who owns several radio stations in West Virginia, says sharing spectrum was tried before and did not work well.

“This band, years ago, was shared with AT&T and other telcos for point-to-point long-distance links. Fixed, licensed paths that could be plotted and protected against for satellite installations,” Taggart told Radio World. “Our studios are 1,500 feet from an old MCI tower, at one time we had a metal screen behind our satellite dish to protect against ‘back-scatter’ from a path aimed away from us. Still, we had to convince MCI to shut down one channel so we could pick up a program from Premiere [a radio network distributing programming on satellite].”

Some industry plans propose registering C-Band satellite dishes, at a cost of $600-$1,600 per site, which would allegedly protect them from interference by requiring wireless broadband services to steer clear of the area.

“But I am not even sure what kind of broadband services are proposed,” Taggart said. “One might assume these would be omnidirectional sites, like a typical cell site. Even with some clever computer-engineered directional patterns, reflections off hillsides, billboards, buildings would be enough to overwhelm the tiny satellite signal. However, other articles described these services as ‘mobile.’ Even if my dish is registered, how can I resolve interference problems from a mobile device?”

The debate rages on because the frequencies involved, next to the even more popular CBRS band, are highly coveted.

4.9 GHz

After the events of 9/11 in 2001, the FCC has prioritized public safety communications, in hopes of improving the interoperability of different first responders’ portable radios. At that time, fire agencies could not easily talk to police, ambulance crews, or in some cases other fire crews arriving from different departments miles away.

Many agencies contemplating use of this band discovered equipment that supported 4.9 GHz was hard to find and extremely expensive. Most public safety agencies seeking grants or other funding to improve their communications equipment opted to transition to digital P25 networks that operate on much lower frequencies and use equipment that is now widely available and, in comparison, much cheaper. Many agencies are conservative about using new technology as well, concerned a communications failure could cost the life of a fire or police responder. As a result, of the 90,000 organizations certified for licenses in this band, only 3,174 have been granted. That represents a take rate of just 3.5%. The band, as one might expect, is effectively dead in most areas, underutilized in others.

“As the demand for wireless services continues to grow, it is imperative that the FCC takes steps to ensure underutilized spectrum bands are used efficiently,” said FCC Commissioner Mignon Clyburn. “This is as true for spectrum allocated to public safety as it is for the bands used to support commercial wireless broadband services.”

FCC Commissioner Michael O’Rielly is convinced wireless companies like AT&T and Verizon could use the frequencies more efficiently.

“It has been 16 years since the 4.9 GHz band was allocated to the public safety community, and it is still woefully underutilized,” said O’Rielly. “That is not sustainable in an environment in which every megahertz of spectrum, especially below 6 GHz, needs to be fully scrutinized and maximized in quick order. While the Commission’s original allocation was more than likely well-intentioned, it is way past time to take a fresh look at this 50 megahertz of spectrum.”

Although higher than 3.5 GHz, engineers believe there is a very credible case to be made to use the available spectrum for 5G fixed wireless services, delivering broadband at speeds up to 1 GHz from a small cell located nearby. It would have to be. At these frequencies, virtually anything blocking the line-of-sight between the antenna and the user will block the signal as well. With almost no constituency defending the 4.9 GHz turf, it is expected it will be repurposed for wireless broadband in areas where it isn’t in use for public safety communications.

24/28 GHz

Although the 28 GHz band has many licensed users already, the 24 GHz band does not, and the wireless industry is interested in grabbing vast swaths of spectrum in this band for 5G home broadband. Known as “millimeter wave spectrum,” these two bands are expected to be a big part of the 5G fixed wireless services being planned by some carriers. Verizon acquired Straight Path late in 2017, which had collected a large number of licenses for this frequency range. Today, Verizon holds almost 30% of all currently licensed millimeter wave spectrum, an untenable situation if you are AT&T, T-Mobile, or Sprint. T-Mobile has been the most aggressive seeking more spectrum to compete with Verizon in this frequency range, and has purchased almost 1,150 MHz covering Ohio for use with a 5G project the company is working on.

39 GHz

FiberTower, now owned by AT&T

This band might as well be called “the controversial band” because AT&T made moves on these frequencies even before the FCC got around to discussing an auction for this band, likely also to be used for 5G fixed wireless. FiberTower originally held hundreds of licenses for wireless spectrum for several years, but did little with them, leading to suggestions the company was either hoarding the spectrum to resell to someone else or was incapable of deploying a network that used the frequencies. The company declared bankruptcy in 2012, eventually emerging in the spring of 2014 just in time to watch the FCC uphold the decision of its Telecommunications Bureau to cancel 689 of FiberTower’s licenses for failure to use them.

In February 2018, AT&T completed its acquisition of FiberTower for $207 million. According to AllNet Insights & Analytics, AT&T acquired more than 475 of FiberTower’s 39 GHz spectrum licenses, raising eyebrows among shareholders who lost their investments in FiberTower after it declared bankruptcy. Hundreds of the spectrum licenses that came with the AT&T deal were given a value of $0.00, allowing AT&T a sweetheart deal and shareholders hoping to recover more money from the bankruptcy liquidation extremely upset. In fact, had FiberTower remained in bankruptcy, it would eventually have surrendered all of its licenses, which would then be put up for auction by the FCC and would likely command much higher value among bidders. Verizon effectively paid triple the price for what AT&T got for a song in the FiberTower acquisition. Even more remarkable, the FCC approved the acquisition by AT&T despite the obvious fire sale price, and has ignored the consequences of what could come from an AT&T/Verizon duopoly across large swaths of 5G frequencies.

Eshoo

That brought a rebuke from Rep. Anna Eshoo (D-Calif.) who accused both Verizon and AT&T of flipping public property for private gain.

“The FCC’s policies unambiguously required Straight Path and FiberTower to forfeit their unbuilt spectrum licenses,” Eshoo wrote. “But rather than auction the reclaimed spectrum and promote timely deployment, the FCC’s Wireless Telecommunications Bureau reached ‘resolutions’ with Straight Path and FiberTower than allowed them to profit handsomely from their wrongdoing. Following the ‘resolution,’ Straight Path sold its assets to Verizon for nearly $3.1 billion, and FiberTower is estimated to have sold its assets to AT&T for roughly $2 billion.”

In reality, AT&T acquired FiberTower for $207 million — a fraction of the amount of the estimated value of the spectrum Eshoo used in her estimate.

“The Bureau’s decisions also further concentrated critical input resources in the hands of the two dominant wireless incumbents,” Eshoo continued. “The purchasers of the public assets that Straight Path and FiberTower once held, Verizon and AT&T, already control a disproportionate amount of other critical spectrum available for immediate deployment. Up until recently, the industry had an imbalance in favor of these companies in low-band spectrum that lasted for decades. The FCC now risks going down the same wrong path with high-band spectrum should the Commission continue down this course. Allowing Straight Path and FiberTower to ‘flip’ public assets for private gain does nothing for taxpayers, but does much to further entrench the dominant incumbents’ longstanding spectrum advantage over their rivals.”

95+ GHz

The FCC has not regulated frequencies above 95 GHz, but as technology advances, there is growing interest in utilizing spectrum that many believed would be essentially unusable for communications services. Right now, most frequencies in this range are used by environmental satellites and radio astronomy. At these frequencies, signals would be absorbed by the skin and attenuated significantly by things like high humidity’s haze or fog. Still, there are proposals under consideration to open up a small portion of spectrum for unlicensed home users for things like indoor wireless routers.

The key policy priority here will be to protect existing users from any hint of interference. But with vast amounts of unused frequencies in this range, it shouldn’t be difficult to keep competing users apart.

AT&T successfully bribed a Oklahoma telecom regulator to allow the phone company to keep at least $30 million annually in excess revenue. Despite the fact two key players in the bribery scandal were eventually sent to federal prison, Oklahoma’s state government has done all it can to protect AT&T. At issue is up to $16 billion in refunds and damages payable by AT&T — approximately $15,000 per customer, that the state claims would not be in the public interest. Now a consumer group — Oklahomans Against Bribery — is taking its case for refunds to the U.S. Supreme Court.

Remarkably, AT&T has remained so confident of its case and close relationship with Oklahoma state officials, the company drew gasps in a 2015 hearing after its attorney argued even bribed votes count at the Oklahoma Corporation Commission (OCC), the state’s telecommunications regulator, and the Commission has no jurisdiction to tell AT&T to make things right with Oklahoma ratepayers.

The Oklahoma Corporation Commission: “Perjury Palace”

The notorious scandal began with the passage of the Tax Reform Act of 1986 during the Reagan Administration. Echoing recent tax changes passed during the Trump Administration, Republicans argued that reduced taxes would cut the burden on corporations by changing the way those taxes were calculated, with savings trickling down to individual taxpayers. Under Oklahoma law, when a regulated utility wins a tax break, so should ratepayers in the form of lower rates. In June, 1987 the OCC ordered utilities including Southwestern Bell Telephone Company (today doing business as AT&T) to be prepared to refund the excess revenue that came as a result of the tax cut.

Only AT&T had no serious intention of refunding the money to its customers. Investigators claimed the company’s senior Oklahoma executives conspired with at least one of their attorneys to bribe Corporation Commissioner Bob Hopkins with a $10,000 payment in return for his vote allowing AT&T to “invest” the excess money in network upgrades. AT&T got its wish in a 2-1 vote. For almost 30 years, the lone dissenter in that vote, Corporation Commissioner Bob Anthony, has led the charge to reopen the case and get consumers a long overdue refund.

In 1988, when he was running for a seat on the Corporation Commission, Anthony said he was warned he would not be a good fit.

“A friend and Crowe and Dunlevy attorney advised me that someone like me should not run for election to the Oklahoma Corporation Commission, calling it the ‘perjury palace,'” Anthony wrote in a 2016 dissent opinion of the rate case.

Even before Anthony won his seat on the Commission, the bribery attempts began, often involving a high-powered utility lawyer named William Anderson, hired by SBC/AT&T:

“My first introduction to this entire episode was in about the last six weeks of my campaign….I was sent word that some people wanted to meet me. Well, I was running a campaign so I was happy to meet people interested.

“So, I went over to Mr. [William] Anderson’s office, and we had a nice chat. He’s…an authority on utility regulation. We had a nice little chat, and he handed me an envelope, and I put it in my pocket. And I remember driving home, not at the first stop light, but at the second stop light, I opened up the envelope and there were 10 $100 dollar bills in it, with a little slip of paper in one person’s handwriting that had five names written on it. Now, I was supposed to assume that that was five people [who] contributed $200 apiece, and that I didn’t have to report it by name.

“I told this story to a high school friend of mine who just happened to be the U.S. Attorney at the time. And before I told him the name of the person, he said, ‘Was that Bill Anderson?’ And I said, ‘Yeah, that’s who that was.’ And he said, ‘Well, Bob, we’ve been interested in his activities for a long period of time, but it’s awfully difficult to get inside information.’ And I said, ‘If he continues to have dealings with me, I’ll keep you posted.'”

It wasn’t long before Anthony associated Anderson’s presence with pocketfuls of cash waiting to fall on the table:

“I remember the time he had 50 $100 dollar bills. And I said, ‘You know I grew up in the business world, and we counted money when it came in.’ And so he’d chuckle, and then I’d start counting it out, 1-2-3-4, and then it would get up to 45-46-47-48-49-50! And, uh, he had a funny little thing he’d like to say,…’Well, if there was one extra, I’d a’ jumped up there and grabbed it.’ And we’d chuckle about that.

“Then he’d go on and explain about what was expected for the money. The definition of bribery, out of Black’s Law Dictionary, includes a quid pro quo. If he just gives me a gift that’s not necessarily a bribe. But, if he does, like he did, say, ‘You know, these companies I represent, they expect to make a profit. They expect to be in business a long time. And we’re not going to bother you every day, but someday there will be some officer of one of the companies I represent, and we’ll need an appointment, and we’d expect for you to give us an appointment.’

“Well, a certain amount of this is a wink and a nod, too. But, there was no doubt in our minds what was going on. Very clearly what was happening was people were giving me a large number of hundred dollar bills because they were buying access, and they were buying influence. And those words were even used in conversations that I had with utility executives.

“So my high school friend arranged for me to meet him in his US Attorney’s office, and there were two top FBI agents from the city who were there. And I agreed to keep them informed if activities continued.

“And Mr. Anderson called, and he called again, and he wanted to establish a relationship. And eventually they got recording equipment put in my office, and he continued his activity.”

Anthony recounted how utility lobbyists and lawyers introduced themselves, almost always around the issue of money.

“You know, sometimes I get money for the commissioners,” one lawyer told Anthony, adding some lawyers and lobbyists frequently offer $300 or $400 in “walking around money.” Those lobbying Anthony also reminded him they were aware of his campaign deficit, and despite being illegal, one offered to bundle a $10,000 contribution to help retire his debt.

The SBC/AT&T Bribery Case

FBI Director Louis J. Freeh (right) presenting Commissioner Anthony (left) with the Louis E. Peters Memorial Service Award in 1995. (Image courtesy: Bob Anthony)

The prospect of AT&T getting to keep at least $30 million in excess revenue a year (later revised upwards in an independent audit to $120 million annually) meant going the extra mile with commissioners to assure a vote in AT&T’s favor. By this time, Anthony had volunteered to serve as a FBI informant and had turned over any money he received improperly to the government. Federal investigators also obtained wiretap warrants, which caught telephone company executives discussing the bribe they didn’t want to know about.

“Do it and don’t let me know how you do it,” Oklahoma SBC/AT&T division president Royce Caldwell is heard saying on one wiretap.

Anthony argues there is substantial evidence that AT&T’s bribery is only a part of a much broader conspiracy involving a variety of utilities who were routinely bribing regulators to win votes at the OCC. But the AT&T case was special because of the amount of money involved.

“Multiple executives and attorneys were involved,” he said. A judge that later reviewed the case called the money given to Anthony, “no more or no less than an effort to have him look with favor on their pending rate matters.”

Other executives named by Anthony in the case were David Miller, SBC’s vice president in Oklahoma for governmental and regulation affairs and SBC attorneys William Free and Glen Glass.

In a sworn affidavit, Anthony cited a FBI wiretapped conversation between Anderson and Free in which Anderson said, “[Glen] Glass knew the whole deal. We all knew. They all knew we were trying to work something.”

What they apparently knew is that their attorney, Mr. Anderson, had found OCC Commissioner Robert Hopkins, a grateful recipient of $10,000 in telephone company bribe money, and the critical second vote in favor of AT&T being allowed to keep its excess revenue.

In 1994, a federal grand jury indicted Anderson and Hopkins for illegal bribery and conspiracy charges. Both were found guilty in late 1994 and sentenced to federal prison.

The Bribery Worked: AT&T Still Benefits Today from Rigged Vote That Was Never Overturned

Pruitt

Despite convictions, jail time, and clear and convincing evidence of a corrupted regulatory process, the order granting AT&T permission to keep the money was never overturned, despite repeated efforts by Anthony to throw out the tainted vote.

Since the late 1980s, AT&T has collected an estimated $16 billion in excess charges from Oklahoma ratepayers, including interest. But every effort to see that money returned to Oklahoma consumers and businesses has met a roadblock of resistance from AT&T, the Oklahoma state government, and regulatory agencies who call the case “ancient history” and “closed for further debate.”

The most serious effort to overturn the OCC’s original vote came in 2015-2016, when a coalition of consumers, business leaders, and philanthropists teamed up to convince the OCC and the courts they should toss out the tainted vote. They ran head-on into then Oklahoma Attorney General Scott Pruitt (today the head of the Environmental Protection Agency in the Trump Administration.)

Pruitt had been a staunch defender and supporter of AT&T in his role as Attorney General. In 2014, shortly after Pruitt dismissed another challenge about excess revenue in favor of AT&T, the phone company and its executives richly rewarded Pruitt’s campaign coffers with $43,500 — 44.5% of all donations for the summer and fall 2014 period. Pruitt ran unopposed in 2014.

Pruitt’s office renewed opposition to those challenging AT&T once again in 2015:

The Oklahoma Attorney General’s Office has maintained the position that the PUD 260 matter should not be reopened for nearly 20 years. As Attorney General Drew Edmondson stated to the Oklahoma Supreme Court in 1997, and again in 2010, “[t]he public interest would not be served by reopening an evidentiary hearing occurring nearly [two] decade[s] ago. The resources of the Commission and of the parties could be better utilized than by rehashing ‘ancient history.’ Accordingly, a rehearing of this cause is not in the best interests of [Southwestern Bell Telephone]’s customers and is not advocated by the Attorney General.”

Independent news site NonDoc took issue with Pruitt’s premise:

How can Pruitt expect his position on PUD 260 to ring true with the public considering his lengthy and documented history of defending major corporate interests in Oklahoma?

For a politician so well-versed in the art of pandering — whose campaign website asks voters to “Help Scott protect the citizens of Oklahoma” — how does the potential reimbursement of an estimated $15,000 for every qualifying AT&T customer in the state not serve their “best interests?”

Whose best interest is really protected by refusing to re-examine a corrupt moment in Oklahoma’s political history?

The answer likely lies somewhere in the political realities of our time. When corporations are considered people, it’s corporate dollars that count, especially when most actual people can’t be bothered to get out and vote.

In 2016, the OCC dismissed yet another attempt to revisit the issue, this time with prejudice, telling the group and consumers across Oklahoma the issue cannot be litigated ever again.

Headed for the U.S. Supreme Court

After being uniformly rejected by Oklahoma’s conservative politicians and judiciary, the group of citizens fighting to get the original late 1980s ruling overturned and force refunds for customers is taking their case to the U.S. Supreme Court this week.

Oklahomans Against Bribery continues to believe the law is on their side, despite arguments from AT&T’s attorneys that even bribery-tainted votes count.

“We took on this fight when the Attorney General stopped representing Oklahoma ratepayers and started defending AT&T,” said bribery refund applicant and Nichols Hills Mayor Sody Clements. “We hoped the Corporation Commission and the Oklahoma Supreme Court would finally do the right thing – declare once and for all that bribed votes don’t count in this state, and give the billions stolen by AT&T back to the ratepayers.  Unfortunately everyone has passed the buck and claimed it’s someone else’s problem to fix. We believe the buck will stop at the United States Supreme Court.”

Their petition for writ of certiorari, filed March 19, argues their “right to petition” under the First Amendment was violated when the OCC dismissed their bribery refund application “with prejudice,” prohibiting them from ever raising the issue again.

“Denying citizens the right to further petition their legislative bodies on legislative matters – especially matters involving proven public corruption – threatens and undermines our very republican form of government,” the petition argues. “The high importance of this case to the public interest, both from a monetary standpoint and from the standpoint of harm done – now and in the future – to ‘the good order of society,’ warrants review.”

The U.S. Supreme Court is expected to rule on the petition before the end of its term in early summer 2018.

Even bribed votes still count at the Oklahoma Corporation Commission, argues AT&T’s attorneys. This overview looks at the AT&T Bribery Case still on appeal. (5:46)

AT&T’s attempt to avoid oversight and enforcement of consumer protection laws by the Federal Trade Commission (FTC) failed in a federal appeals court Monday, overturning a 2016 decision that agreed with AT&T the FTC could not oversee or punish AT&T for its business practices.

In a unanimous 11-0 decision by the Ninth Circuit Court of Appeals, the court found AT&T’s interpretation of a law it said gave the Federal Communications Commission exclusive authority to regulate and oversee “common carrier” telecom companies was overly broad and based on a misinterpretation of the law. The decision means the FTC will continue to pursue AT&T in court to secure relief for AT&T’s wireless customers that the FTC claims were misled by AT&T’s unlimited data plan that was not truly unlimited.

“The phrase ‘common carriers subject to the acts to regulate commerce’ thus provides immunity from FTC regulation only to the extent that a common carrier is engaging in common-carrier services,” the court ruled Monday. In laymen’s terms, the judges found that the FCC does have the regulatory authority to oversee common carrier services like basic telephone service, but the law does not prevent other government agencies like the FTC to oversee AT&T’s conduct in non common-carrier services.

The FTC and the FCC both argued that allowing AT&T and the 2016 lower court opinion to stand would create a regulatory loophole through which virtually any corporation with even the slightest ownership stake in a common carrier telecommunications company could escape all oversight and enforcement of consumer protection laws.

The dispute began in 2014, when the FTC sued AT&T in court for intentionally throttling wireless internet speeds of millions of AT&T customers hanging on to their legacy unlimited data plans.

The FTC’s complaint alleged that the company failed to adequately disclose to its customers on unlimited data plans that, if they reached a certain amount of data use in a given billing cycle, AT&T reduced – or “throttled” – their data speeds to the point that many common mobile phone applications – like web browsing, GPS navigation and watching streaming video –  become difficult or nearly impossible to use.

“AT&T promised its customers ‘unlimited’ data, and in many instances, it has failed to deliver on that promise,” said former FTC Chairwoman Edith Ramirez in 2014. “The issue here is simple: ‘unlimited’ means unlimited.”

According to the FTC’s complaint, AT&T’s marketing materials emphasized the “unlimited” amount of data that would be available to consumers who signed up for its unlimited plans. The complaint alleged that, even as unlimited plan consumers renewed their contracts, the company still failed to inform them of the throttling program. When customers canceled their contracts after being throttled, AT&T charged those customers early termination fees, which typically amount to hundreds of dollars.

The complaint accused AT&T of violating the FTC Act by changing the terms of customers’ unlimited data plans while those customers were still under contract, and by failing to adequately disclose the nature of the throttling program to consumers who renewed their unlimited data plans.

AT&T responded in court asking the case be dismissed, arguing that the FTC could not bring a case against AT&T because, as a common carrier, only the FCC has jurisdiction over the company.

The case was largely decided on whether Congress intended to exempt common carrier companies from FTC oversight based on their “status” or their “activities.” AT&T argued the law clearly gave companies deemed to be common carriers a blanket exemption from FTC oversight. The FTC argued Congress only intended to exempt the specific common carrier “activities” or services sold by a company from FTC oversight, not the entire company. The three-judge panel of the Court of Appeals agreed with AT&T’s view, affirming AT&T’s claim it was untouchable by the FTC and dismissed the FTC’s lawsuit.

Judge Kozinski, questioning AT&T: “I’m regulated by the FTC and I don’t like it. I go out and I buy a small, money-losing common carrier. Do I say, ‘bye bye FTC,’ under your reading of the statute?”

The decision was a stunner in D.C. regulatory circles and opened a chasm-sized loophole for almost any company to completely escape the FTC’s oversight and enforcement of consumer protection laws just by providing a single common carrier service (or acquiring a small phone company that does) to secure blanket immunity. The FTC appealed the decision before the Ninth Circuit Court of Appeals.

Both the FTC and at least one judge hearing the federal agency’s appeal saw the potential impact of the earlier 2016 decision immediately.

“I’m regulated by the FTC and I don’t like it,” Judge Alex Kozinski said to AT&T’s attorney. “I go out and I buy a small, money-losing common carrier. Do I say, ‘bye bye FTC,’ under your reading of the statute?”

The FTC warned if AT&T’s view was upheld, any company could buy a common carrier and violate federal consumer protection laws with no recourse for consumers and no available FTC enforcement action.

This week’s decision, called “common sense” by the judge who wrote the summary of the court’s finding, restores the FTC’s authority over non-common carrier services at companies large and small, including AT&T. It is also a relief to FCC Chairman Ajit Pai, who earlier argued the FTC had jurisdiction over abusive ISPs and would effectively oversee broadband providers without any need to continue the net neutrality policies of his predecessor. Had the court ruled in favor of AT&T, Pai’s policy would have transferred oversight of internet services to an agency legally prohibited from overseeing most broadband providers.

The FTC was pleased with the decision.

“It ensures that the FTC can and will continue to play its vital role in safeguarding consumer interests including privacy protection, as well as stopping anti-competitive market behavior,” Maureen Ohlhausen, acting Chairwoman, said in an emailed statement.

AT&T was not, and claimed the court ignored the merits of the case.

“We are reviewing the opinion and continue to believe we ultimately will prevail,” the representative said in an emailed statement, which did not definitively state whether AT&T intended to appeal the decision.

AT&T is rolling out mobile 5G service for its wireless smartphone and tablet customers in a dozen U.S. cities by year’s end, starting in parts of Atlanta, Ga., and portions of Dallas and Waco, Tex.

“After significantly contributing to the first phase of 5G standards, conducting multi-city trials, and literally transforming our network for the future, we’re planning to be the first carrier to deliver standards-based mobile 5G – and do it much sooner than most people thought possible,” said Igal Elbaz, senior vice president, wireless network architecture and design. “Our mobile 5G firsts will put our customers in the middle of it all.”

AT&T’s mobile 5G will work differently from the fixed wireless home broadband service Verizon is launching this year using small small cell neighborhood antennas. But like Verizon, AT&T is taking a gradual, incremental approach to the next generation of wireless technology.

In 2017, AT&T announced what it calls “5G Evolution” service in almost two dozen cities, although this branding was derided as “fake 5G” in the tech press because, in reality, it is just an improvement of today’s widely deployed 4G LTE service. Similar technology is also in place at T-Mobile. In the fall of 2017, AT&T introduced 4G LTE-Licensed Assisted Access (LTE-LAA) technology in Indianapolis and parts of Chicago, Los Angeles and San Francisco. This network lays the foundation to offer gigabit speed wireless service, and is especially useful in areas where AT&T’s spectrum holdings are tight.

AT&T’s initial 5G rollout will serve parts of:
A – Atlanta, Ga.
B – Waco, Tex.
C – Dallas, Tex.

AT&T is preparing its existing wireless network to permit gradual migration to the completed 5G wireless standard over both existing and new spectrum.

This year, AT&T plans to launch some 5G service using millimeter wave spectrum, which is very line-of-sight and offers a more limited service area. But the technology will support very fast wireless speeds and offer plenty of bandwidth. AT&T could deploy this technology initially in dense population areas and places like stadiums, malls, and convention centers.

“Ultimately, we expect to reach theoretical peak speeds of multiple gigabits per second on devices through mobile 5G,” AT&T wrote in a press release. “While speed is important, we also expect to see much lower latency rates. With higher speeds and lower latency rates, our mobile 5G network will eventually unlock a number of new, exciting experiences for our customers.”

If past precedent means anything, AT&T will likely only initially offer 5G service in selected parts of each city. It needn’t hurry, because equipment designed to work with the new spectrum isn’t expected to become widely available until 2019. A gradual transition will also please shareholders by keeping network upgrade costs predictable over the next 3-5 years.

AT&T isn’t expected to use 5G technology anytime soon as part of its taxpayer-funded, rural wireless broadband deployment. AT&T currently uses its 4G LTE technology to power its fixed wireless rural broadband service. AT&T claims this service was designed to assure download speeds of at least 10 Mbps, although customers using it report speeds are often lower, although sometimes higher. AT&T does not offer and network performance guarantees, stating, “service performance may be affected by your proximity to a cell site, the capacity of the cell site, the number of other users connected to the same cell site, the surrounding terrain, radio frequency interference, applicable network management practices, and the applications you use.” That will also be true of AT&T’s forthcoming 5G network.

Some residents in Houston and Dallas are furious at AT&T and its contractors for causing major damage to homeowners’ property, in one case burning down a Houston family home after accidentally hitting a natural gas line that resulted in a fire.

Joyce Skala’s home in Cypress was seriously damaged in a fire just before Thanksgiving 2017 and almost three months later, Skala says AT&T and its contractors won’t talk to her about the damages and who will pay for them.

“Everything you look at when you leave your house in the morning, it was gone,” Skala told KPRC News after the Nov. 14 fire. “I have not heard from a soul — not one. Not even a representative of a representative.”

The damage was not an isolated incident. KPRC noted two days later, AT&T’s contractors damaged an electric line in Shelli Moore’s yard in a different neighborhood, causing a power outage. Repairing the damage will cost her almost $2,000, and so far, Moore appears to be left holding the bill.

“That would break me,” she said. “I have no idea where I would come up with that kind of money, but we have to have lights and heat,” Moore said.

Joyce Skala’s home, destroyed by fire after an AT&T contractor hit a natural gas line (Image: KTRK)

In the Dallas-Ft. Worth area, utility workers made themselves right at home at Norma Logan’s home, using her back patio as a dining area and completely “trashing” her backyard.

Logan came home to find AT&T digging a deep trench along her back fence, damaging sections of it, as well as destroying her personal property. Then they left without a word.

“They broke many things out there,” Logan told KTVT. “They broke the fence. They broke the statue. They broke some of the things that I use to decorate the flower bed.”

A day later, the workers returned unannounced, this time with heavy equipment that continued to tear up her yard. But before getting to work, they spent a leisurely breakfast at her patio table just outside her back door. They didn’t bother to clean up after they finished.

The subcontractor responsible in these cases was NX Utilities, which has piled up a number of complaints against it since last fall. But AT&T appears to still be using the company to construct its fiber to the home network in both cities.

Contractors left evidence of their presence behind. (Image: Logan)

Anni Shugart’s Cypress home was damaged by an electric surge, and AT&T didn’t want to talk to her about the damage to her home either.

“I couldn’t get anywhere with AT&T,” Shugart said.

Shugart, like others, was left holding the bill after AT&T denied her claim, suggesting they are not responsible for the damages. They pointed her to NX Utilities, but that didn’t make much difference either so she called her insurance company, which is covering her repairs, except for the $4,500 deductible she is paying out of pocket.

“Well, I hope I’ll get it back eventually,” she said. “It’s a lot of money.”

Two days later, contractors hit another gas line. Four days after that they cut another underground power line.

“People in my neighborhood are mad at AT&T,” homeowner Pam Grossman told KPRC.

AT&T claims that it is not directly responsible for the damage, because it was caused by its third-party contractor NX Utilities. In fact, NX is just one of several layers of contractors working on AT&T’s fiber project, and in the event of a problem, the contractors are excellent at pointing fingers at one another.

KPRC reports when the fire marshal turned up to investigate the fires, the report included claims from contractors blamed each other while holding themselves harmless.

“There was no way that his company was involved in the fire,” said the owner of Connect Links in the fire marshal’s report.

KPRC in Houston reviews the damage being done in the Houston area by AT&T’s subcontractors managing the company’s fiber buildout. (3:58)

AT&T contractor NX Utilities allegedly damaged Norma Logan’s fence in the Dallas-Ft. Worth area. (Image: KTVT)

AT&T won’t say how many damage reports about it or its contractors have been filed in Houston and Dallas-Ft. Worth. But AT&T did say it was doing both cities a big favor by enabling them for gigabit fiber internet, and regrets the problems that have developed along the way.

“Our goal is to minimize impact on residents before, during and after construction and to keep them informed through a variety of means throughout the network expansion process,” AT&T said in a statement. “If construction-related issues do occur, we work quickly to resolve and restore any impacts from our work.”

The key emphasis is “our work” and AT&T feels its subcontractors are responsible for fixing their own problems.

“Whether large or small, these damages impact the public and that is not lost on us,” AT&T said. “We track damages and other issues and review performance with our contractors performing the work. As we identify poor performers, we cull those out. Damage can occur for a number of reasons, from contractor error to locates not being accurate. Before we begin a project, we talk with locating firms to provide them with some high-level visibility into where we anticipate completing work on a regular basis. Furthermore, as a part of the large project locate process, we typically provide 30-60 days’ notice versus the minimum 10 days.”

Logan discovered utility workers dug this trench in her backyard along the fence line. (Image: KTVT)

AT&T says projects of this large size and scope require careful planning and implementation, and the company has gotten significant experience managing fiber upgrades in a number of cities where it provides telephone and broadband service.

“We have dozens of supervisors and inspectors in the field to ensure our contractors are performing to our standard,” said AT&T. “We work closely with city officials to ensure our work is done in a timely and orderly fashion. Our contractors are trained to obtain proper permitting, closely follow local construction codes, and abide by rules governing rights-of-way and property easements.”

But many homeowners report they never got any advance notification about the construction work and even less often understood how it would impact on their property.

Logan said she received no notification, despite claims by NX it placed fliers on her door. But those fliers said nothing about heavy construction equipment being brought in, driven over grass and into a cramped backyard to dig. Logan was incensed as she watched equipment dig a trench several feet deep along her backyard fence line, ruining some of her lawn ornaments and damaging her fence.

A second day of empty coffee cups and fast food wrappers left on her patio table was also an unpleasant reminder of their presence.

NX later claimed they reprimanded their workers, not for the damage done to her property, but for not cleaning up their trash as they left.

The sudden arrival of heavy equipment attempting to navigate into Logan’s backyard only upset her further. (Image: KTVT)

AT&T is not the only telecom company that receives criticism for property damage while installing fiber cables. Google Fiber generated “hundreds of complaints” in the Austin area for construction mishaps, including alleged flooding from backed up storm drains that damaged multiple properties. In Charlotte, N.C., Google was accused of causing damage to water wells and allegedly struck a sanitary sewer, flooding a home with raw sewage.

Since September 2015, Charlotte city officials have cited contractors for ordinance violations more than 40 times for $21,300, data show. That included $14,200 in general violations and $6,700 for closing a portion of a right-of-way without the proper traffic control. Fines ranged from $100 to $1,800. Ansco, a contractor for AT&T, was cited the most: 17 times for $8,400. Bechtel, which does work for Google, was cited six times for $2,100, including fines that also mentioned another subcontractor.

How to protect yourself

If a company is performing work involving installation of underground cables, that carries the greatest risk of potential damage to property or other utilities. Many mishaps are caused by inaccurate maps that purport to show where other underground utilities are installed. In some areas, those maps are incomplete or wrong. In the United States, these problems are so serious that there is a nationwide free hotline – 811 – available to consumers and contractors for free on-site location flagging of where underground utilities are actually located.

AT&T is installing fiber optics in several Texas cities.

You can request your own site survey at no charge and photograph the results for your records.

Here is how to request a site survey:

• Call 811 from anywhere in the country at least two days before digging and your call will automatically be routed to your local one call center. Visit the 811 service state map to see if your local one call center accepts online requests.
• Give the operator information about how to contact you, approximately where you or a contractor will likely dig, and what type of work will be done. If you don’t know all the details, that is okay. Request a general assessment of where utilities have placed their cables on or near your property and let 811 know a contractor hired by the telecom company will be doing the work independently.
• Utility companies who have potential facilities involved will be notified of the imminent arrival of a contractor preparing to dig on or near your property.
• Each affected utility company will send a location team to mark the approximate location of underground utility lines. Sometimes they spray paint the location on grass or pavement in different colors reflecting the service. In other cases, they plant small plastic flags in a line where the cabling is located. This typically occurs within 2-3 working days, but some states may have different rules.  To access specific information about your state, visit the 811 state map.

Contractors are usually required by ordinance to notify you in advance of any utility work that is done on or near your property. This notice is usually in writing and can be a mailed or placed flier or a doorhanger card. Retain this notification until the work is complete. It will generally include contact information about the company doing the work and what to do in case a problem arises, and most importantly, who to contact.

Prior to the arrival of the construction crews, photograph your yard to document its current condition. Make sure to get clear photos along property lines or easements, documenting the condition of fencing, landscaping, and any pre-existing structures. If damage occurs, you will have before and after photos to show the contractor, town officials, and/or your attorney.

If possible, stay home on the day work is being done. Making your presence known will greatly reduce the chance utility workers will be careless with your personal property or how they conduct themselves. Document any suspicious or disturbing activity by taking video on your cell phone. Watch for workers attempting to access areas of your property unaffected by the work. They do not have the right to use your outdoor furniture for lounging or eating. They also do not have the right to relieve themselves in your yard.

Buried wire flags

In every case, they are responsible for reasonably restoring your property to the same condition it was in before they arrived. That means repairing ruts or reseeding disturbed portions of your lawn, repairing or replacing damaged items like fencing, lawn ornaments, buildings, and other personal property. If they damage or kill a tree, they are responsible for removing and replacing it, if it was located on your property and not in an easement (in those cases, contact your local town or city officials and ask how to proceed.)

If you discover damage to another company’s infrastructure (or public utilities), call the affected company or public utility right away. They will need to document the damage and arrange for repairs. If a utility power line is knocked down or damaged between the pole or yard pedestal and your home, some companies may require you to hire a private contractor to replace the line. You will want to notify the contractor that did the damage about the incident and begin documenting the process to receive reimbursement.

It is not your responsibility to navigate a company’s complex maze of contractors and subcontractors. Contact the telecom company doing the work and insist they identify the contractor involved and agree to liaison with you to get the matter resolved quickly to your satisfaction. They cannot walk away from their responsibility to correct damage just because they chose to hire an independent company to perform work on their behalf.

When an AT&T contractor hit a utility line, it caused a power surge damaging homeowners’ utility boxes and outside walls. (Image: KPRC)

KPRC asked Texas real estate attorney Nikolas Spencer about who is responsible in these cases according to Texas state law.

“All of them are,” he said. “If they know that this particular subcontractor is routinely causing fires at people’s houses, or even just nicking the lines themselves, that’s a repeated and dangerous situation that AT&T is on notice as happening. They’re responsible for that.”

Your municipality may be willing to share violation details about contractors performing work in your area. If you can document repeated instances of careless work or violations, that can be strong evidence to prove AT&T was aware of the situation, yet continued to use an offending contractor.

KPRC recommends hiring an attorney if severe damage is caused by a utility. For minor property damage, you may get fast results asking for a supervisor or filing a complaint with the Better Business Bureau or a state Attorney General’s office. Those complaints are generally forwarded to a senior customer service manager better empowered to get quick results.

Having a fiber optic upgrade is almost always a good thing, and can increase the value of your home in a sale. But for many homeowners, it has been decades since major utility construction work was done in older neighborhoods and people can forget the disruption, noise, inconvenience, and occasional damage that can be done along the way. Those best prepared in advance to fight for their interests are the most likely to win quick resolution and satisfaction from utility companies that do damage and may not have adequate resources (or interest) in correcting the problem before you give up in frustration and go away.

KTVT in Dallas reports AT&T’s fiber construction crews have damaged personal property and inconvenienced customers. (2:03)