Cuomo

As expected, New York’s efforts to lower broadband pricing through a state mandate has been effectively killed in a Brooklyn federal court, putting an end to Governor Andrew Cuomo’s efforts to require providers to offer a $15 broadband tier to income-challenged state residents.

U.S. District Judge Denis R. Hurley, who signed a preliminary injunction preventing the mandate from taking effect on June 15, signaled the concept was likely unlawful in a memorandum attached to the injunction. Several telecom companies challenged the mandate in a lawsuit heard in Hurley’s courtroom, claiming states have no regulatory authority to set broadband terms or pricing. Hurley was clearly persuaded in their direction, and was pessimistic the state could ever show a legal way to regulate internet pricing, something currently reserved to the FCC. As a result, a settlement has been proposed dropping the affordable pricing mandate.

Hurley was also moved by arguments from several smaller New York providers that claimed the new mandate would force them to sell service below cost. Empire Access, a fiber to the home overbuilder based in Prattsburgh, filed a declaration with the court threatening to cancel a major expansion project to wire customers in Livingston and Broome counties, including the city of Binghamton, if the mandate was implemented, because it would likely lose federal funding.

Because of the state’s definition as to who would have qualified for the affordable broadband tier, many smaller companies in rural, economically challenged area of upstate New York claimed they would face substantial economic losses to their businesses. Empire claimed it would lose “approximately $2 million per year,” Heart of the Catskills claimed top-line revenue would decrease $1,364,000 annually, Delhi Telephone claimed it would lose at least $90,000 per month, and the Champlain Telephone Company notified the court that “nearly half (48%) of its existing broadband customers will qualify for discounted rates,” causing the company to lose money on each customer.

“While a telecommunications giant like Verizon may be able to absorb such a loss, others may not,” Judge Hurley wrote in his order.

Gov. Cuomo bristled after learning of the lawsuit, threatening to revoke the franchise of any company that refused to implement the  state’s affordable broadband program. But the governor has made empty threats before, including a promise in 2018 to revoke the merger of Charter Communications and Time Warner Cable because the company failed to live up to the deal commitments it made to state regulators. A settlement was eventually reached between the cable giant and the state, and it appears a settlement between the plaintiff telecom companies and the state will also end this dispute and lawsuit. It appears the state has capitulated and plans to walk away from the affordable broadband proposal, although it reserved the right to appeal the case.

Stop the Cap! predicts the state will work with larger providers to increase public knowledge of the companies’ existing affordable internet programs, which usually have similar qualifications to the affordable internet law Cuomo proposed. Cuomo Administration officials will also likely lobby the Biden Administration to toughen federal oversight of broadband service and suggest a possible federal mandate for an affordable service tier and a return to net neutrality under a regulatory framework that opens the door for future price and service regulation.

The court decision signals states the solution to broadband affordability will not be found in state laws or mandates that attempt to regulate broadband pricing, at least until the current federal law changes.

New York Gov. Andrew Cuomo discussed affordable internet at the State of the State address in January 2021.

Low income New Yorkers will soon be able to subscribe to internet service at speeds starting at 25/10 Mbps for $15 a month, thanks to a new law passed by the state legislature and signed by Gov. Andrew Cuomo.

To qualify, a consumer will need to show proof of active enrollment in any of the following programs:

• Medicaid
• Free or discounted school lunches
• the Supplemental Nutrition Assistance Program (SNAP), commonly referred to as “food stamps”
• A senior or disability rent increase exemption

Almost every internet service provider of consequence in New York will be required to introduce a low income discounted internet program by June 2021. Consumers will be offered at least two options, depending on the technological capacity of a provider’s network:

• $15/month basic service at speeds of at least 25/10 Mbps
• $20/month enhanced service bringing download speeds up to 200 Mbps.

Rates will be fixed for at least five years, after which providers can increase prices based on the rate of inflation or by a modest percentage allowed by the state. In 2023, the New York State Public Service Commission will be permitted to require increases in the minimum download speeds offered.

The measure is part of New York’s effort to expand broadband availability and affordability across the state. Earlier broadband funding programs helped expand service into rural, unserved areas. This year, the legislature and the governor are targeting the digital divide between those who can and cannot afford internet access. The state’s largest cable operator, Charter Spectrum, already offers low-income customers its own Spectrum Internet Assist program, with similar qualifications. The company charges $14.99/month for 30/4 Mbps internet service, but excludes current customers from enrolling and may reject customers with past due balances owed in the past.

Gov. Cuomo announced the initiative at the State of the State Address in January. Critics called the plan “window dressing,” noting the state’s largest telecommunications companies including Charter Spectrum, Verizon, Altice, and Frontier already offer internet discount programs. Many also continue to question the governor’s contention that 98% of New Yorkers can now access high-speed internet and the overall cost and quality of service.

To assist residents in finding a suitable provider, the state launched an Affordable Internet website to help consumers sign up for discounted service. In some cases, additional discounts may be available.

The legislation also mandates the Public Service Commission to study and report back on internet accessibility and affordability by this time next year. The PSC will scrutinize how many New York homes and businesses still lack access to high-speed internet, as well as studying how reliable service providers are, what rates they charge, and the current state of competition in New York.

New York consumers can share their own experiences with internet service providers the state will use to guide potential future legislation.

WGRZ in Buffalo took a closer look at whether New York’s mandate for affordable internet service was a game changer or just window dressing. (2:33)

Gov. Andrew Cuomo discusses his rural broadband initiative in New York.

Despite repeated assurances that 98% of New Yorkers now have access to high-speed internet, rural New Yorkers from the state’s border with Massachusetts to farm country outside of Niagara Falls don’t believe it. Now New York’s Comptroller, Thomas P. DiNapoli, is auditing the half-billion dollar program to determine where the money went and where broadband service is now available.

A source told WGRZ-TV in Buffalo that an audit of Gov. Andrew Cuomo’s “Broadband for All” program was initiated by the Comptroller’s office back in March 2020 after rural residents and the lawmakers that represent them began complaining the program never delivered on its commitments. WGRZ Reporter Nate Benson notes that what may have started as a routine audit may now be under additional scrutiny because of the impact of the COVID-19 pandemic, which forced many New Yorkers online for work and learning from home.

The broadband program, introduced with great fanfare by the governor in 2015, promised that every New Yorker that wanted high speed internet (at least 25 Mbps in rural areas, 100 Mbps in urban communities) would have access by the end of 2018. The governor claimed the state earmarked $500 million — mostly proceeds from legal settlements with large New York City banks accused of criminal activity surrounding the Great Recession — towards the program, with dollar for dollar matching from companies awarded grants to expand internet access in specific areas.

Benson noted that publicly available data on the N.Y. Broadband Program Office website found a significant shortfall in private investment dollars, with only four out of 53 internet service providers awarded grants matching or exceeding the amounts they received from the state broadband fund. In short, they accepted generous subsidies without being equally generous with their own money.

DiNapoli

The program used a reverse auction approach to award state broadband funding. Phone, cable, and wireless providers bid to serve one or more of the 256,000 “census blocks” the state identified as lacking access to high-speed internet. Most companies chose the most densely populated census blocks next to their existing service areas, assuring higher profits while the state paid a significant amount of the construction costs. In the end, 76,000 census blocks in very rural, sparsely populated areas least likely to get broadband service attracted no bids at all. To achieve the state’s vaunted “98% served,” officials signed a contract with a satellite internet provider to service the remaining 30% of rural New Yorkers left behind, despite the fact satellite internet providers had a reputation for not meeting subscriber expectations and rarely guaranteed consistent minimum broadband speeds of 25 Mbps. Hughes Satellite provides the service, but our readers using the service warn it comes with a stingy data cap inadequate for today’s average household usage. Speeds are wildly inconsistent as well, often way below 25 Mbps.

Even with satellite internet as an option, New Yorkers continue to tell Stop the Cap! they are still without access, including satellite, even in communities just a few miles outside of major cities like Albany, the state capital. The true scope of the problem became apparent last spring as the coronavirus pandemic emerged, forcing employers to send workers home and schools switched to online learning.

Westerlo, N.Y.

The Berne Knox Westerlo School District, located in the hill towns of Albany County, quickly realized there was a wide gap between the state’s “98% covered” claim and reality.

“We had about 28-30% of our student population without internet access or with very poor internet access.” Superintendent Dr. Timothy Mundell told WRGB News. The district tried stop-gap measures like parking Wi-Fi enabled school buses around the district and handing out Wi-Fi hotspot devices, which proved to work unevenly. Mundell says the only real solution to this problem is ubiquitous fiber to the home internet access, and that is a long way off.

“It concerns me because every day we’re without, my students have the potential of falling behind their peers down in the suburbs and the urban areas,” Mundell said. “So this is a real equity issue for us and we want to make sure rural areas get served.”

Two Republican lawmakers from Western New York also introduced a bill this year to repeal a 2019 state tax on optical fiber cable projects. Senators George Borrello and Pam Helming believe the tax will discourage fiber optic buildouts, especially in higher cost rural areas.

“The reality is that broadband is no longer a luxury this is a basic infrastructure need just like water sewer electric and roads, and without it we’re not going to be able to expand.” Sen. Borrello said.

Dundee, N.Y.

But the biggest proponent of the law’s repeal, Verizon Communications, is also one of the telecommunications companies showing the least interest in expanding its fiber internet service in rural New York. Verizon is fighting the tax so it can save money on expanding its mobile 4G and 5G wireless networks, which are connected with fiber optic cables, not because it wants to expand FiOS fiber to the home service.

Meanwhile, New Yorkers without broadband remain stuck.

“It’s all a lot of empty promises with no sign of service,” Katy tells Stop the Cap! from her home near Dundee, in the Finger Lakes region of the state. “I’ve lived here since the days when the only phone line you could get was a party line shared with four other homes and I still have my rotary dial phone New York Telephone installed in 1965. These companies don’t want me to forget I am living in the past.”

Katy lives about 500 feet from the nearest address able to subscribe to Charter Spectrum and was quoted $9,000 to extend cable to her home, set far back from the main road. Verizon has never offered DSL in her neighborhood, because she is located too far away from the central office. Her property is set in a small forest, so satellite internet is not a possibility either.

“I can watch two channels over the air from Syracuse with my outdoor antenna, but that is all. I guess I prefer reading anyway,” she tells us.

WGRZ in Buffalo reports the New York State’s Comptroller’s Office is auditing Gov. Andrew Cuomo’s Broadband for All program, which guaranteed 98% of New Yorkers high-speed internet. (3:06)

A tropical storm that swept up the east coast of the United States took out Frontier Communications’ landline network, its backups, and 911 service for residents of Orange and Sullivan Counties, N.Y. for 13 hours last night, requiring a response from local fire officials after Frontier’s backup equipment also failed.

Tropical Storm Isaias brought significant, but not unprecedented wind and rain to the Hudson Valley of New York on Tuesday. While most of the damage and service outages were further east in the New York City, Long Island, and New Jersey areas, a general power failure in the City of Middletown started a chain of events that left two counties without Frontier phone, internet, or 911 service from 7:30 pm Tuesday night until 8:30 am Wednesday morning.

When the power failure began, Frontier’s switching network went down. Calls to 911 failed to connect, and customers reported no dial tone or internet access. Frontier’s backup battery system, designed to operate in the event of a power failure, itself failed and literally melted under the pressure, spilling enough toxic chemicals to force Frontier to request assistance from the Middletown Fire Department and Orange County Hazmat, which responded to contain the toxic material. Frontier had to drive in a replacement backup solution from another service area to get its network up and running again.

“There were several equipment failures there related to the power outage,” Brendan Casey, commissioner of emergency services told the Times Herald-Record. “Their backup system failed, their switch failed, battery issues that resulted in a minor hazmat issue. It was like everything just failed up there.”

After dealing with the failed battery equipment, county officials, firefighters, and Frontier technicians were left in the building’s parking lot cooling their heels until 2 am trying to figure out how to restore 911 service to the area, without success. Casey reported Frontier successfully restored 911 service later Wednesday morning.

Orange County, N.Y.

As Frontier technicians gradually restore service to individual customers affected by the storm, county officials are calling on the New York Public Service Commission to conduct a review of the incident and investigate if Frontier was adequately prepared to deal with the storm. Frontier will not be alone. Gov. Andrew Cuomo blasted utility companies across downstate New York, accusing them of being ill-prepared to handle the storm. Some customers are expected to be without power, phone, and internet service for up to a week.

“We know that severe weather is our new reality and the reckless disregard by utility companies to adequately plan for tropical storm Isaias left tens of thousands of customers in the dark, literally and figuratively. Their performance was unacceptable,” Cuomo said. Cuomo ordered the PSC to “launch an investigation into Verizon, PSEG Long Island, Con Edison, Central Hudson Gas & Electric, Orange and Rockland Utilities, and New York State Electric & Gas to understand how such a failure could have taken place. New Yorkers deserve answers and they deserve better. The large volume of outages and the utilities’ failure to communicate with customers in real-time proves they did not live up to their legal obligations. The fact that many customers still do not know when their power will be restored makes it even more unacceptable. The worst of this situation was avoidable, and it cannot happen again.”

Frontier was not the only telecommunications company embarrassed by the tropical storm. Along the Westchester-Putnam border, power outages knocked out cell service. At one location, a backup generator designed to provide backup power to the cell tower immediately caught fire, causing damage to the building at the base of the tower.

“While there was a fire at the cell tower in question, I have no information if all carriers on that tower are down or just one. What we do know is that cell services across the county are negatively impacted for all carriers. We had reports that cell towers in this region (Putnam, Orange, Rockland, Passaic) were damaged during the storms,” said Thomas Lannon, director of Putnam County’s technology office.

Frontier filed for bankruptcy protection in April 2020.

Gov. Andrew Cuomo announcing rural broadband initiatives in New York.

When New York Gov. Andrew Cuomo boasted in 2015 that anyone who wanted broadband service in the state would have access to it, he could not have realized that claim would come back to haunt him five years later.

New York’s Broadband for All program claimed to be the “largest and most ambitious state broadband investment in the nation,” with $500 million set aside “to achieve statewide broadband access by 2018,” with “99.9% of New Yorkers” getting access to broadband service.

In 2020, that goal remains elusive, with over 80,000 New Yorkers relegated to heavily data-capped satellite internet access and potentially tens of thousands more left behind by erroneous broadband availability maps that could leave many with no access at all. Now it appears the federal government will not be coming to the rescue, potentially stranding some rural residents as a permanent, unconnected underclass.

The Republican-majority at the Federal Communications Commission has decided to take the Democratic governor at his word and exclude additional rural broadband funding for New York State. The FCC’s recently approved Rural Digital Opportunity Fund (RDOF) is the most ambitious rural broadband funding initiative to date, with a budget of $20.4 billion. As it stands, not a penny of those funds will ever be paid to support additional broadband projects in the Empire State.

“Back in 2016, the governor of New York represented to this agency that allocating the full $170 million in Connect America Fund II support to the state broadband program would allow full broadband buildout throughout the Empire State, when combined with the state’s own funding,” said FCC Commissioner Michael O’Rielly.

That $170 million was originally designated for Verizon to spend in upstate and western New York in areas without high-speed broadband. When Verizon declined to accept the funding, the rules for the program required the money to be made available for other qualified projects in other states, or left forfeit, unspent. An appeal from New York’s Senate delegation to FCC Chairman Ajit Pai to award that $170 million to New York’s Broadband for All program was successful, allowing other phone, cable, and wireless providers to construct new rural broadband projects around the state. That decision was met with criticism, especially by the Wireless Industry Service Providers Association (WISPA), which represents the interests of mostly rural, fixed wireless providers around the country.

O’Rielly

“After robust opportunity for public input, last year the FCC adopted a CAF-II framework that was truly technology-neutral and designed to harness the power of competition to deliver the most broadband to the most Americans, at the lowest overall price,” said Steve Coran, counsel for WISPA, in a statement. “Unfortunately, today’s action appears to deviate from this approach by providing disproportionate support to one state at the expense of others, which will now be competing for even less federal support.”

That criticism was partially echoed by Commissioner O’Rielly, who appreciated the dilemma of rural New Yorkers without access to high speed internet, but felt the FCC was showing favoritism to New York, which he worried was getting a disproportionate share of federal funding.

“These are federal [Universal Service Fund] dollars taken from ratepayers nationwide. They are not New York State funds, and we have the burden of deciding how best to allocate these scarce dollars, as well as the right to demand that they be spent wisely,” O’Rielly said. “At the same time, I am concerned that the funding will not be used as efficiently as possible. It should not be lost on everyone that New York is one of the states that diverts 9-1-1 fees collected to other non-related purposes, as is noted in the Commission’s recent report on the subject. We should have received assurances that New York would cease this disgraceful practice.”

O’Rielly added that offering even more generous funding in New York could lead to overpaying providers to service rural New York communities at the expense of other, cheaper rural broadband projects in other states.

Recently O’Rielly claimed that allowing New York to receive funding under the new RDOF program would almost guarantee dollars would be spent on duplicative, overlapping broadband projects, noting that Gov. Cuomo already considers New York almost entirely served by high speed providers. In fact, he claimed any additional funding sent to New York would be “beyond foolish and incredibly wasteful” and would undermine the rural broadband program’s objective to avoid funding projects in areas already served by an existing provider.

In other words, since Gov. Cuomo has claimed that virtually the entire state is now served with high speed internet access, O’Reilly believes there is no reason to award any further money to the state.

Except the claim that ‘nearly the entire state already has broadband access’ is untrue, and O’Rielly’s arguments against sending any additional money to New York seem more political than rational.

The FCC’s broadband availability map shows significant portions of New York in yellow, which designates no provider delivering the FCC’s minimum of 25/3 Mbps broadband service.

First, the FCC’s own flawed broadband availability maps, criticized for over counting the number of Americans with access to broadband, still shows large sections of upstate and western New York unserved by any suitable provider. Parts of western New York between Buffalo and Rochester, significant portions of the Finger Lakes, Southern Tier, and North Country are all still without access. An even larger portion of upstate New York has either no access or very slow access through DSL. The number of residents without service is significant. The FCC uses census blocks to measure broadband availability, but this methodology is flawed because if even one home within that block has broadband while dozens of others do not, the FCC still counts every home as served. This has angered many New Yorkers stuck without service while a local cable or phone company offers high-speed internet access to neighbors just up the road. Many of these rural residents are not even designated to receive satellite service, Broadband for All’s last catchall option for areas where no wired provider bid to provide service.

Second, long-standing rules in broadband funding programs already deny funding to areas where another suitable provider already offers service. So it would be impossible for RDOF to award “wasted” funding to projects where service already exists.

While Gov. Cuomo’s boastful claims about broadband availability opened the door for discriminatory rules against the state, the FCC itself wrote the rules, and it appears the goal was one part payback for securing earlier broadband funding over the objections of Commission O’Reilly, and one part sticking it to a state that has given the Trump Administration plenty of heartburn since the president took office.