Verizon gets out the black marker to redact information it considers “confidential.”

The New York Public Service Commission Monday rejected most of Verizon’s request to keep secret the state of its landline network and details about the company’s plans to distribute Voice Link as an optional wireless landline replacement in the state.

Nearly two months after Verizon announced it was abandoning its original plan to replace defective landlines on Fire Island with Voice Link, Verizon is bristling over a Freedom Of Information Law (FOIL) request from consumer advocates and a union for disclosure of reports filed with the PSC regarding Verizon’s network and its upkeep — information the company considers confidential trade secrets. To underline that belief, Verizon provided the PSC with edited versions of documents it filed with the state considered suitable for public disclosure, one consisting of 330 pages of blanket redactions except for the page headings and page numbers.

“[These discovery requests] are designed solely to advance the Communications Workers of America’s self-serving efforts to prevent Verizon from offering its Voice Link product, even on an optional basis, and to investigate the relationship between Verizon and Verizon Wireless — matters that are beyond the scope of this or any other pending Commission proceeding,” wrote Verizon deputy general counsel Joseph A. Post. “On September 11, 2013, Verizon announced that it had decided to build out a fiber-to-the-premises (“FTTP”) network on western Fire Island, and targeted Memorial Day 2014 for the completion of construction and the general availability of services over the new network.”

The PSC disagreed with Post, ruling the majority of documents labeled “confidential” by Verizon were, in fact, not.

“[…] The information claimed by Verizon to be trade secrets or confidential commercial information does not warrant an exception from disclosure and its request for continued protection from disclosure is denied,” ruled Donna M. Giliberto, assistant counsel & records access officer at the Department of Public Service.

Verizon has until Nov. 14 to file an appeal.

Common Cause New York, the Communications Workers of America-Region 1, Consumers Union, the Fire Island Association, and Richard Brodsky used New York’s public disclosure laws to collectively request documents shedding light on their suspicion Verizon has systematically allowed its landline facilities to deteriorate to the point a wireless landline substitute becomes a rational substitute. They also suspect Verizon diverted funds intended for its landline network to more profitable Verizon Wireless.

“In spite of its obligations under New York law, in spite of the investment by ratepayers in the FIOS wireline system, in spite of the needs and expectations of the people, businesses and economy of the state, Verizon is intending to and has begun to shut down its wireline system,” declared the groups.

Many involved took note of Stop the Cap!’s report in July 2012 that warned then-CEO Lowell McAdam had plans to decommission a substantial part of Verizon’s copper landline network, especially in rural areas, where it intended to replace it with wireless service:

“In […] areas that are more rural and more sparsely populated, we have got [a wireless 4G] LTE built that will handle all of those services and so we are going to cut the copper off there,” McAdam said. “We are going to do it over wireless. So I am going to be really shrinking the amount of copper we have out there and then I can focus the investment on that to improve the performance of it. The vision that I have is we are going into the copper plant areas and every place we have FiOS, we are going to kill the copper. We are going to just take it out of service and we are going to move those services onto FiOS. We have got parallel networks in way too many places now, so that is a pot of gold in my view.”

Some consumer groups suspect Fire Island represented an opportunity to test regulators’ tolerance for a transition away from copper landlines in high cost service areas. As Stop the Cap! reported this summer, New Yorkers soundly rejected Verizon Voice Link, with more than 1,700 letters opposing the wireless service and none in favor on record at the PSC.

In early September, a well-placed source in Albany told Stop the Cap! Verizon’s request to substitute Voice Link where it was no longer economically feasible to maintain landline infrastructure was headed for rejection after a constant stream of complaints arrived from affected customers. Verizon suddenly withdrew its proposal on Sept. 11 and announced it would bring FiOS fiber optics to Fire Island instead.

Although Verizon now insists it will only offer Voice Link as an optional service for New York residents going forward, public interest groups still believe Verizon has allowed its landline network to deteriorate to unacceptable levels.

Verizon originally claimed 40% of its facilities on Fire Island were damaged beyond repair when they were assessed after Hurricane Sandy. But residents claim some of that damage existed before the storm struck last October. Some fear Verizon is engaged in a self-fulfilling prophecy, allowing its unprofitable copper wire facilities to fall apart and then point to the sorry state of the network as their principle argument in favor of a switch to wireless service.

Herding money, resources, and customers away from landlines to Verizon Wireless

“In fact, the vast majority of defective lines are a consequence of the failure and refusal of Verizon to maintain and repair the system over time,” the groups assert. “The Commission must make a factual determination of the cause of the 40% defect allegation as part of this proceeding. If, as asserted herein and elsewhere, the evidence shows a pattern of inadequate repair, maintenance and capital investment, the Commission can not and should not approve any loss of wireline service to any customer, as matters of law and sound policy.”

“We assert that Verizon has systematically misallocated costs thereby distorting the extent to which the wireline system has suffered losses, if any. […] It is fair to say that substantial losses in the landline system are repeatedly used by the Commission and the Company as a justification for rate increases and regulatory decisions affecting the scope, cost, adequacy and nature of telephone service provided to customers of Verizon NY.”

Verizon would seem to confirm as much.

In 2012, Verizon’s chief financial officer Fran Shammo told investors the company was diverting some of the costs of Verizon Wireless’ upgrades by booking them on Verizon’s landline construction budget.

“The fact of the matter is wireline capital — and I won’t get the number but it’s pretty substantial — is being spent on the wireline side of the house to support the wireless growth,” said Shammo. “So the IP backbone, the data transmission, fiber to the cell, that is all on the wireline books but it’s all being built for [Verizon Wireless].”

Funds diverted for Verizon Wireless’ highly profitable business were unavailable to spend on Verizon’s copper wire network or expansion of FiOS. In 2011, Verizon diverted money to deploying fiber optics to 1,848 Verizon Wireless cell towers in the state. In 2012, Verizon deployed fiber to an extra 867 cell tower sites in New York and Connecticut. Public interest groups assert the costs for these fiber to the cell tower builds were effectively paid by Verizon’s landline and FiOS customers, not Verizon Wireless customers.

Since 2003, Verizon has been subject to special attention from the New York Public Service Commission because of an excessive number of subscriber complaints about poor service. As early as a decade ago, the PSC found Verizon’s workforce reductions and declining investment in its landline network were largely responsible for deteriorating service. Each month since, Verizon must file reports on service failures and its plans to fix them.

In September alone, Verizon reported significant failures in service in rural areas upstate, almost entirely due to the weather:

• Heuvelton: A summer filled with significant thunderstorms resulted in downed poles and service disruptions. Verizon reported the central office serving the community was in jeopardy in June. By mid-July, 7% of customers reported major problems with their landline service.
• Amber: Nearly 11% of customers were without acceptable service in May because a 100-pair cable serving many of the community’s 274 customers was failing.
• Chittenango: Nearly 9% of the community’s 1,059 landline customers had significant problems with service because Verizon’s central office switching system in the exchange was failing.
• Sharon Springs: Almost 11% of Verizon’s customers in this small rural office of 417 lines were knocked out of service in July.
• Elenburg Dept.: More than 8% of Verizon’s 324 lines in this rural Adirondack community were out of service, usually as a result of a thunderstorm passing through.
• Hartford: When it rains hard in this Adirondack community, landline service fails for a substantial number of customers. In September, 2.43 inches of rain left 12.4% of customers with dysfunctional landline service.
• Valley Falls: Nearly one-third of Valley Falls’ 722 landlines were out of service in September after lightning hit several Verizon telephone cables. Problems only worsened towards the end of the month.
• Kendall: Almost 9% of Verizon customers in the Rochester suburb of Kendall were without service after a rain and wind storm. When a cold front moves through the community, landlines service is threatened.
• Bolivar: More than 20% of customers lost service July 19th after heavy rain, winds, and power outages hit.
• Cherry Valley: Verizon blamed seasonal service outages in Cherry Valley on farmers that dig up or damage buried telephone cables. More than 7% of customers were knocked out by harvested phone lines in July.
• Edmeston: More rain, more service outages for the 801 landlines in this small community in area code 607. More than 13.5% of customers called in with complaints in July. Verizon blamed heavy rain.
• Clinton Corners: Service failures come after nearly every heavy rainfall due to multiple pair cable failures in the aging infrastructure. More than 9% of customers reported problems in June, 13.2% in July, 8.2% in August, and 12.5% in September.

Verizon’s landline trouble reports disproportionately come from rural communities, exactly those Verizon’s former CEO proposed to serve by wireless. Weather-related failures are often the result of deteriorating infrastructure that results in outages, especially when moisture penetrates aging cables. Rural communities are also the least-likely to be provided fiber service, exposing customers to a larger percentage of the same copper wiring critics charge Verizon is allowing to deteriorate.

The Communications Workers of America says Verizon’s attempts to introduce Voice Link service as a landline replacement has gone well beyond Fire Island and the Catskills.

In a fiery letter dated today, Chris Shelton, vice president of CWA District One says Verizon has been quietly installing dozens of the wireless devices in the Hudson Valley and attempted to install them in one 81-unit senior residence in the heart of New York City, until residents protested they were in danger because Voice Link does not support the medical monitoring devices they use to live independently. After rejecting the wireless service, the union alleges Verizon left the residence without any phone service at all.

Shelton says customers are not getting full disclosure of what they are signing up for when they accept Voice Link and Verizon is using the devices as a cost-saving measure as the company allows its landline facilities to deteriorate into disrepair.

“There was no ‘Superstorm’ at work in Monticello and no emergency or unforeseen circumstances – just the easily predictable, routine deterioration of facilities that Verizon could not be bothered to maintain and an influx of customers who arrive every year at exactly the same time,” Shelton said. “In other words, Verizon had ample opportunity to plan for the maintenance and repair of these customers’ needs in a timely manner, but simply chose not to schedule the necessary work.”

Shelton says Voice Link units are also turning up in the Boroughs of Queens and Brooklyn in certain circumstances.

Thus far, the Public Service Commission has not publicly responded to the allegations and the regulator has not asked Verizon for an explanation about their installation of Voice Link in areas outside of the western part of Fire Island, where the Commission has granted them interim authority to run the service as the sole landline replacement.

Stop the Cap! received word Verizon may have a statement regarding these matters shortly. We will update readers with any new developments.

Stop the Cap! has received information from customers and anonymous employees that Verizon Communications is allegedly attempting to pressure seasonal residents in the rural Catskill Mountain region of upstate New York to give up their landline phone service in favor of the company’s wireless alternative, Voice Link, in potential violation of an order from the New York Public Service Commission limiting its deployment to sections of Fire Island.

Two Verizon customers who own vacation property in the mountainous region of upstate New York in and around Monticello separately contacted Stop the Cap! after doing online research on the wireless product Verizon representatives attempted to sell them.

Both reported they were pressured by Verizon’s service/repair department to accept the landline alternative after attempting to reconnect their seasonal telephone service. In one case, a customer had to call Verizon three times to attempt to reconnect her disconnected phone line after a missed appointment.

“They wanted nothing to do with coming out here to put my old phone line back in service,” says the customer, one of two we have been asked to leave unidentified in light of certain forthcoming legal proceedings. “I got transferred twice and finally ended up talking to someone pushing something called Voice Link.”

Verizon Voice Link

The customer tells us she never heard of Voice Link and Googled information about it, ending up on Stop the Cap!’s website which has maintained ongoing coverage of the product’s introduction on Fire Island.

“I called them back and told them they must be mistaken because I don’t own property on Fire Island and they told me it was no mistake and that they were preparing to distribute Voice Link all across the area and I was lucky to be among the first before they ran out,” the customer tells us.

The second customer, who has since taken his complaint to the Attorney General of New York, claims he was offered the same service from Verizon a week later.

“When I called to get my dial tone back, Verizon transferred me to a special repair representative who wanted to install Voice Link instead,” he tells us. “It was explained I would be better off with Voice Link and would get more calling features for less money and get national calling, free voicemail, and all of these other extras.”

The customer tried to turn the offer down, but Verizon made it difficult to refuse.

“You really had to argue with them and say no at least a dozen times,” our reader tells us. “The reason I said no is that I tried that same type of service from Verizon Wireless and it sucked. I raised my voice and they finally agreed to reconnect my phone.”

We have also received e-mail from individuals claiming to be Verizon employees represented by the Communications Workers of America indicating Verizon delivered a large shipment of Voice Link units for deployment in the Catskills, despite the fact Verizon is apparently not authorized by the PSC to offer the service to customers outside of the western half of Fire Island, and only on an interim basis.

Verizon’s use of Voice Link in upstate New York will almost certainly raise questions with regulators who negotiated the agreement with Verizon over the limited use of Voice Link during its evaluation, especially if customers report they were not offered the service only as an option.

If the allegations are true, Verizon may be signaling its confidence it will succeed adopting Voice Link as a mandatory rural landline replacement in parts of New York State and isn’t waiting for final approval from the PSC.

Verizon’s Jarryd Gonzales denied Verizon is responsible for any wrongdoing, noting nothing in the PSC’s Fire Island proceeding restricts Verizon’s ability to offer Voice Link service as an option, which he confirmed the company was doing in Monticello. (See PSC order here, reference page five: “Finally, the amendment will not apply in areas where Verizon offers the alternative wireless service as an optional service [i.e., traditional wired facilities are still in place].”)

“Verizon’s VoiceLink is an innovative and proven product that already is providing quality and reliable voice telephone service to residents of Fire Island and other areas,” Gonzales tells Stop the Cap! “It is a repair option for our customers who have had continued and lingering difficulties with their copper-based telephone service.  It uses wireless technology which has proven to be resilient, and which millions of people use millions of times each day.”

[Update 4:25pm ET]

The New York Attorney General’s office has announced they have filed an Emergency Petition with the New York Public Service Commission to prohibit Verizon from “illegally installing” Voice Link service in direct violation of its tariff.

Attorney General Eric Schneiderman has asked the Commission to sanction Verizon for its actions detailed in this formal complaint:

The Attorney General’s Office has recently learned that Verizon intends to require customers outside of the Fire Island pilot area seeking to have their wireline service installed accept instead wireless Voice Link service, notwithstanding the Commission’s May 16 Order. According to reports by representatives of the Communications Workers of America, Verizon has delivered a pallet load of Voice Link devices to its Monticello Installation/Maintenance Center, and has instructed its technicians in that region to provide summer seasonal customers returning to Catskill vacation homes, who have long been received Verizon wireline service, only Voice Link service.

The union’s report is corroborated by two complaints of Verizon seasonal customers who have been told Voice Link will be installed instead of repairing their wire line telephone service. Only by firmly refusing Voice Link were both customers able to keep their wireline service.

Unlike Fire Island, wireline network damage from Superstorm Sandy cannot be used as an excuse for substituting Voice Link for wireline service in the Catskills, where the storm had limited impact. Instead, it appears that in the Catskills, Verizon has chosen to pursue the company’s business strategy in blatant disregard for the Commission’s Order.

The Commission’s May 16 Order could not have been clearer in limiting Verizon’s substitution of Voice Link for wire line service to western Fire Island, to enable evaluation of this unproven technology on a pilot basis.

Verizon’s provision of Voice Link outside the confines of western Fire Island is illegal, and its open defiance of the Commission’s May 16 Order must be met with effective sanctions.

[Update 4:33pm ET]

[Article further updated at 5:17pm ET to include statement from Verizon Communications.]

A surprise announcement from the U.S. Supreme Court that it will hear an appeal brought by Comcast Corporation in a class action lawsuit brought on behalf of Philadelphia consumers, despite a pending settlement, may mean the Supreme Court is on the verge of issuing another business-friendly ruling that will make class action cases more difficult to file.

Comcast had reached a tentative settlement in June with lawyers who brought a $875 million class-action lawsuit on behalf of Philadelphia area cable subscribers. The antitrust case, originally filed in 2003, accused Comcast of strategically swapping or acquiring cable systems owned by Marcus Cable, Greater Philadelphia Cablevision, Inc., Lenfest Communications, Inc., AT&T, Adelphia Communications Corp., Time Warner, and Patriot Media in and around Philadelphia for the purpose of creating a super-sized Comcast cable system that could deter competitors from entering the market and allow Comcast to charge higher prices for service.

RCN Telecom Services originally intended to compete for cable customers in the Philadelphia region, but found it could not break into the market because Comcast allegedly hired as many available technicians it could find and tied them down with exclusive contracts. RCN also claimed Comcast targeted potential customers with special, allegedly below-cost deals to retain their business. RCN later filed for bankruptcy.

“Stated bluntly, Comcast and other large cable operators have demonstrated both the inclination and the wherewithal to use their market power to crush broadband competition in their local markets whenever it has the audacity to appear,” RCN alleged.

In 2002, RCN went public with a series of allegations:

Comcast intimidates independent construction and installation contractors. Comcast prevented or tried to prevent about 15 Philadelphia-area contractors from doing business with RCN through “non-compete” clauses, RCN alleged. The company provided specific names of contractors and Comcast personnel in sealed documents.

Those practices dated at least to the late 1990s, when Comcast acquired Suburban Cable, RCN said. Both Suburban and Comcast went “to extraordinary lengths to document ‘violations’ and intimidate contractors who were thought to be in contact with, or working for, RCN,” RCN said.

RCN cited instances of Suburban Cable employees, many of whom later worked for Comcast, allegedly following contractors in their trucks and taking photographs to document contractors seen at an RCN office or work site. These photographs then became “evidence,” RCN said, to support contractors’ termination.

As for predatory pricing, RCN claimed that before its entry into Folcroft in 2000, Comcast allegedly established a sales “swat team” instructed to sign up customers for 18-month contracts in exchange for cheaper cable services.

The plaintiffs’ attorneys want subscribers to receive refunds representing the savings they would have enjoyed had a competitor successfully forced prices down.

Comcast and the plaintiffs’ counsel reached a tentative settlement in June after both sides learned the lawsuit would proceed to trial this September. But in a surprise announcement, the U.S. Supreme Court suddenly decided to step in and hear an appeal filed by Comcast. Comcast immediately declared the settlement incomplete and has now declined to proceed with it, believing it has a more favorable outcome waiting at the Supreme Court.

Kenneth A. Jacobson, a professor at Temple University’s law school, told the Philadelphia Inquirer the Supreme Court does not typically decide to hear a case “during the settlement negotiation and approval process.”

Other Supreme Court watchers suspect the Court’s sudden involvement in the case means it is likely to issue a precedent-setting decision, more likely than not in Comcast’s favor, that will be talked about in law journals for the next decade.

Comcast Center in downtown Philadelphia

The specific point of Comcast’s appeal that interests the Supreme Court has to do with how a class action case certifies damages to the court hearing the case. The Supreme Court agreed to hear the case based on, “whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.

Currently, courts insist that the burden of proof for damages lies with the plaintiff, but they are not necessarily required to demonstrate the actual individual damages suffered by each member of a proposed class action. Many judges accept the concept of fixed group damages based on a composite of an average proposed class member. That amount gets multiplied by the number of members in the certified class action to arrive at the total requested damages. Typically, both sides negotiate a final settlement, deduct attorney fees and costs, and then class members typically get a change in a company’s policies, coupons good for a future purchase or an actual refund in the mail.

The Supreme Court may find that concept inadequate, and insist on a detailed analysis of actual harm done to each proposed class member — a high and potentially expensive hurdle to cross for many class action cases. Legal analysts suggest the intended effect of such a decision would be to further deter class action lawsuits against companies, because the costs and complexities involved would increasingly not be justified.

In the Comcast case, the cable company wanted the court to dismiss the case, and for some very novel reasons:

1. Since Comcast effectively kept competing “overbuilding” cable systems out of Philadelphia, there is no evidence of any theoretical competition benefits such as reduced prices;
2. Since no competitor actually got their service up and running in Philadelphia, Comcast argues there was no competition to eliminate;
3. RCN, in Comcast’s view, was never actually going to start service in Philadelphia because of their own financial woes;
4. Without actual competition in Philadelphia, there is no basis for any expert witness hired by the plaintiff to credibly estimate damages;
5. Even if Comcast was engaged in anti-competitive behavior in Delaware County, that cannot be used by plaintiffs to serve as evidence of class-wide impact for the entire multi-county Philadelphia Comcast cluster.

Over the past few years, the Court has ruled in favor of corporations trying to compel less-costly legal avenues — like mandatory arbitration — for consumers who feel harmed by a company’s actions.

Beahn’s booking photo

A competitor to dominant cable provider Mediacom has been accused of stealing the cable company’s broadband service and reselling it as its own in a bizarre Georgia case that also includes a feud between Albany’s Water, Gas & Light Commission and the defendant.

Back in December, a Georgia Power representative alerted Mediacom about unauthorized equipment placed on a utility pole. When Mike Donalson, Mediacom’s regional security manager arrived at the location off McCollum Drive in Albany, he was surprised to discover a residential Mediacom cable modem powered by a standard car battery sealed in a weatherproof enclosure. Tracking the wiring that exited the box, Donalson eventually found himself at the front door of Addtran Logistics, Inc.

Mediacom immediately launched an investigation and discovered that L2Networks had allegedly contracted with Addtran to provide Internet service. Mediacom alleges in its lawsuit L2 provided the service through a cable modem originally assigned to Beahn’s mother-in-law for residential broadband service at her home.

The company called the Dougherty County Police Department, who arrested Beahn on felony charges for theft of service.

Mediacom is seeking compensatory and punitive damages in its civil suit.

Beahn first came into national prominence in May when he filed the first formal Net Neutrality complaint with the Federal Communications Commission against the Albany Water, Gas & Light Commission claiming the local authority was refusing to allow L2 employees 24-hour access to utility-owned facilities where L2 has placed equipment.

[flv]http://www.phillipdampier.com/video/WFXL Albany Mediacom Files Suit Against L2 6-8-12.flv[/flv]

WFXL in Albany, Ga. reports L2 Networks is headed to court to face charges it used to a Mediacom residential cable modem to deliver business class service under L2’s name.  (1 minute)