Rep. Marilyn Avila (R-Time Warner Cable)

After passing through the Republican-dominated Finance Committee, Rep. Marilyn Avila’s (R-Time Warner Cable) cable company-written, anti-consumer legislation arrived in the North Carolina Senate this afternoon, where it was promptly, if temporarily, derailed over whether residents have the right to watch adult entertainment on community-owned broadband/cable networks.

That’s right… porn has thrown the state legislature into such silliness, the entire bill had to be pulled from consideration until Monday.

Here’s a quick rundown how things played out today:

♥ — H.129, Avila’s anti-broadband bill, has proved to be the first serious piece of legislation that has divided the normally lock-step Republican-controlled legislature this session.  That is entirely because YOU are putting the pressure on with your calls and e-mails to Senate members.  We have it on good authority the overwhelming amount of response to this bill from constituents has been downright hostile to the idea it should ever pass.  Consumers in North Carolina want more choices for broadband, not less.  They want increased competition, lower prices, and most importantly — better service (or at least s0me service from someone).  H.129 does none of those things.  It doesn’t deliver a single new broadband connection anywhere in the state.

♥ — Several amendments helpful to broadband development managed to win a place in the bill.  The communities of Wilson and Salisbury will get to expand their systems to cover larger areas, including the town of Faith Stop the Cap! covered earlier.  We also won a victory changing the terms of the “mandatory referendum” provision to strip away the loaded, misleading ballot question about whether cities should ‘take on more public debt’ to finance the construction of community broadband, replacing it with a fairer alternative — do you favor your community building its own broadband system. 

↓ — But we also lost a few battles. Yesterday, the industry covertly changed the definition of an unserved area from “an area where 50% don’t receive FCC basic broadband service” to a Census block, where 50% of the households don’t receive 768/200Kbps. That change annihilates the unserved area exemption. As confirmed by the highly credible e-NC authority, the industry provides its broadband data by Census block, not by household, and if a census block has just one home that receives Internet service, the entire census block is labelled as having Internet service.

Today, Senator Atwater (D-Chatham) tried to modify that definition with a much better measurement standard: “homes per square mile.”  The federal government has established that the least dense areas of the country are the most costly to serve, which explains why these areas traditionally lack broadband service or receive low speed DSL.  Atwater’s amendment targeted the 38% of the most rural areas in North Carolina to keep the door open for community broadband, but Senator Tom Apodaca (R-Hendersonville) would have none of it, despite the fact his district covers the rural expanse of the western mountains of North Carolina.  Stop the Cap! readers have shared stories with us about hanging out in parking lots using motel Wi-Fi to pay their bills online or complete homework.  In Apodaca’s world-view, that means those areas have broadband.

Now our readers will understand why we have stressed it is so important to have accurate, in-depth broadband map data.  Instead, industry-connected groups like Connected Nation conjure up maps created by unverified, provider-supplied data.  This map data is a critical part of H.129’s tragic terms and conditions.  If the maps say service exists, industry lobbyists use that to browbeat elected officials into believing there is no broadband problem, and there is no reason to allow communities to build their own broadband services.

Of course, the reality is very different.  We’ve received hundreds of messages from Americans who say these maps show broadband as being widely available in their communities, but in reality is not.  Some legislators in North Carolina have confronted this reality personally. For those that haven’t, it’s easy to accept provider arguments, cash those campaign contribution checks, and throw constituents under the bus.

We Saved the Most Ridiculous Part of Today’s Events for Last

Sen. Apodaca's obsession with adult entertainment derailed a scheduled vote on H.129 this afternoon.

When the city of Fayetteville wanted protection for their investment in fiber optics, at risk from H.129, the aforementioned Sen. Apodaca lost his mind.  Instead of protecting city funds already spent on next generation fiber, he substituted his own new amendment — to strip adult programming off community-owned broadband/cable systems instead.

You read that right. In case you didn’t, here it is again:

Sen. Apodaca would rather be the arbiter of what you can watch in the privacy of your own home than protecting community investments in broadband improvements.

So much for the “level playing field” title of Avila’s original bill.  Apodaca’s anti-porn crusade does not apply to Time Warner Cable or other private providers, so he has no problem at all if you want to pop some popcorn and settle down to some movies like “Suck It Sunrise,” “Boning Black Beauty 8” (to answer those lingering questions that went unanswered in part 7), or “Dripping Wet Lesbians,” all currently running on TWC’s adult channels.

No matter that Apodaca’s amendment is completely against federal law, which should signal how clueless some legislators are about these issues.  The Cable Act provides settled law on this subject.  Government cannot engage in cable content regulation — particularly the state and federal government.  The cable industry lobbied hard for that protection in the 1980s in part because of controversy over MTV and other “explicit” programming.  Only the local franchising authority can make decisions about the content they carry — and that means local communities get to make those decisions for themselves (47 USC 544(d)(1)).  That means Sen. Apodaca should worry about his own television viewing habits and stay out other peoples’ lives.

We’re helpers here at Stop the Cap!, so we’d point the senator to 47 USC 544(f)(1):

(f) Limitation on regulatory powers of Federal agencies, States, or franchising authorities

(1) Any Federal agency, State, or franchising authority may not impose requirements regarding the provision or content of cable services, except as expressly provided in this subchapter.

Those exceptions, by the way, have to do with changes in federal law, not the individual whims of one state senator.

Sen. Mansfield, who introduced the original amendment to protect Fayetteville, was naturally disturbed to find Apodaca’s non-germane substitute.  That promoted Apodaca to suggest Mansfield allowed his children to watch pornography, and from there the debate spiraled out of control.  After a brief recess, Apodaca returned to apologize to Mansfield, before killing the amendment to protect Fayetteville’s fiber investment for a second time.

Reviewing today’s events provides us with another edition of Legislators Out of Their League.  Apodaca’s naive amendment was not the only telling example (we know more about telecommunications law than he does.)  Yesterday in the Senate Finance Committee, Ms. Avila was utterly lost at sea as discussion ensued on amendments to the bill with her name on it.  Reduced to muttering at times, confused about the discussions dealing with the definition of underserved, her usual reaction was to oppose what she didn’t understand.  None of this is surprising considering the cable industry wrote the majority of her bill she introduced as her own.  She continues to protect their interests while ignoring yours.

This is why we continue to oppose H.129 and you should too.  We have until Monday to continue to drive the message home to state senators.  If you called or wrote before, it’s time to write and call again.  Tell your state senator H.129 is a bill written by and for the cable and phone companies.  It does not deliver any new broadband service to anyone, risks the investments communities across the state have already made, and allows a handful of big telecom companies to control North Carolina’s broadband destiny.  Considering the state achieves dead last ratings in broadband, that is the kind of control they should never be allowed to have.

Senate Representation By County

2011-2012 Session

(click on your member’s name for contact information)

Remember when Bell’s head of government affairs Mirko Bibic told Parliament usage-based billing was necessary because he didn’t think it fair that all Canadians should pay for “heavy users” of the company’s Internet service?  That was a few months ago.  This is April — time for a rate increase that will jack Bell broadband service rates up an additional $3 a month, effective in May.  That’s a rate increase every customer will pay, and comes with Bell’s everyday Internet Overcharging scheme — usage caps and overlimit fees.

Stop the Cap! reader Alex in Quebec sent a copy of his bill showing Bell’s “Price Update.”  They don’t even want to call it a rate increase.

Bell's notification to customers in Quebec their bills are going up.

“Bell Canada will increase their Internet rates by as much as 15% (for Québec ”Essential” users),” Alex says. “Although $3 may seem like a negligible charge, it especially affects those with budget Internet plans, such as Essential, E Plus, and Performance ‘Fibe’ 6.”

Bell’s website cannot even get the story straight, originally telling customers their overlimit fees would now be rounded to the nearest gigabyte, instead of megabyte.  A Bell spokesperson tells Stop the Cap! that is a typo — they really still mean megabyte.

Bell is one of the few phone companies out there actually increasing their long distance calling rates as well, Alex tells us.  The original announcement came around the same time as the earthquake in Japan, underlining how essential long distance can be during natural disasters.  Many cable companies have waived long distance fees to Japan altogether.  Not Bell.

The rate increases mean customers like ‘Jackorama’ in Hamilton will pay $56.90 for “up to 7Mbps” ‘Performance DSL’ service.  After HST fees, he’ll pay $64.30 just for broadband service, with a 60GB monthly usage limit.  If he exceeds that, he’ll pay even more — $2.50 per gigabyte, or, if he knows he’ll exceed the cap in advance: $5/month for 40 GB, $10/month for 80 GB, or $15/month for 120 GB.

That also assumes Bell can count usage correctly, and there is every indication they cannot.  The company has admitted its usage meter is prone to errors — misreads they are still prepared to bill their customers.

Commercial providers and their pals in the legislature will go to any length — even lie — to protect their cozy duopoly, charging high rates for poor quality service.

That fact of life has been proven once again in the state of Tennessee, where an effort to expand EPB Fiber — a community owned fiber network — to nearby communities outside of Chattanooga, was killed thanks to a lobbying blitzkrieg by Big Telecom interests.

The “Broadband Infrastructure for Regional Economic Development Act of 2011,” supported by chief sponsor House Majority Leader Gerald McCormick, (R-Chattanooga), is dead after telecom industry lobbyists unleashed a full court press to stop the legislation from passing into Tennessee law.

The bill would have permitted EPB and five other municipal electric services that have or are developing broadband infrastructure to expand service up to 30 miles outside of their service area, where appropriate, to meet the needs of businesses or consumers.

With the legislation, EPB could bring its 1 gigabit fiber broadband service to Bradley County, home to a future Amazon.com distribution center.  Amazon already operates a huge warehouse in Hamilton County, where it was able to obtain EPB’s super-fast broadband service.  According to Harold DePriest, EPB President and CEO, Chattanooga’s fiber network is helping sell the city as a high-tech mecca for business, where broadband connectivity is never a problem.

DePriest says EPB’s network has been a proven job-creator, and Amazon.com’s ongoing expansion in the region is just one example.

Chattanooga residents and businesses now have the fastest broadband service in the southern United States, at prices often far less than what the competition charges.  Expanding EPB’s success to other parts of Tennessee represents a major threat to the likes of Comcast and AT&T, the state’s dominant telecom companies.

EPB provides municipal power, broadband, television, and telephone service for residents in Chattanooga, Tennessee

Lobbyists fought the bill off with some whopper tall tales about the “horrors” of community broadband.

Some Republican lawmakers friendly to Comcast and AT&T’s point of view have bent their philosophical positions on government and regulation into logic pretzels.  One has even called for EPB to be regulated by Tennessee’s Regulatory Authority, a body many state Republicans feel is about as helpful as a tax increase.

Despite that, there was Rep. Curry Todd (R-Collierville) at a recent hearing telling fellow lawmakers EPB and other community providers should be regulated by the TRA to protect ratepayers from the “loss of tremendous amounts of money coming out of taxpayers’ pockets.”

Does Todd think Comcast and AT&T should also be regulated?  Of course not.  Nobody should protect consumers from AT&T’s and Comcast’s relentless rate hikes.  Todd cannot even get his facts straight.

After 19 months, EPB has 25,500 customers — far ahead of its projections, and is well ahead of its financial plan, according to DePriest.  So much for being a “financial failure.”

Rep. Curry Todd has trouble with the facts, but has no problem counting campaign contributions amounting to more than $12,000 from Comcast, AT&T, the state cable lobby and other telecom companies

On cue, the same cable industry that tried to sue EPB Fiber out of existence is now comparing the Chattanooga fiber network to Memphis Networx, a disastrous effort by that city to build a public-private wholesale fiber optic network only business and institutions could directly access.  It’s hard to earn critical revenue from consumers when you run a wholesale network.  Even harder when you build it just before the dot.com crash.

EPB sells its service directly to business and consumers, so it gets to keep the revenue it earns, paying back bondholders and delivering earning power.

Stop the Cap! reader John Lenoir notes some of the local tea party groups are also being encouraged to oppose EPB’s efforts to expand.

“Just as Americans for (Corporate) Prosperity is lying about North Carolina’s community broadband, these corporate front groups are also engaged in demagoguery over EPB in Tennessee,” Lenoir says.  “In addition to the usual claims EPB represents ‘socialism,’ the locals are also being told EPB wants to use their fiber network to run smart meters, which some of these people suspect are spying on them or will tell people when they can and can’t use their electric appliances.”

Lenoir in unimpressed with the telecom industry arguments.

“AT&T’s opposition is downright laughable, considering this company raised its rates on U-verse and will slap usage limits on every broadband customer in a few weeks,” Lenoir adds.  “We thank God EPB is here because it means we can tell AT&T to stick their usage limits and Comcast can take their overpriced (and usage limited) broadband somewhere else.”

Lenoir thinks EPB should embarrass both AT&T and Comcast, but since neither company feels any shame in his view, it’s more about business reality.

“Why do business with AT&T or Comcast and their gouging ways when you can sign up for something far better and support the local community,” Lenoir asks.

AT&T spokesman Chris Walker complains that the phone company is somehow faced with an unlevel playing field in Tennessee, despite the legislature’s repeated acquiescence to nearly every AT&T-sponsored deregulatory initiative brought before it.  The company wants a “level playing-field” statute like the very-provider-friendly (it should be — it was written by them) one currently before the North Carolina state Senate.

Comcast questions whether anyone needs 1 gigabit service, but the cable company’s Chattanooga vice president and general manager Jim Weigert told the Times Free Press it could deliver 1 gigabit service… to business customers… assuming any asked.

DePriest questions that, noting Comcast tops out its broadband service at 105Mbps, and only for downstream speeds.  Comcast upload speeds top out at 5Mbps.  EPB can deliver the same upstream and downstream speeds to customers and do it today.

Their bull got you right in your wallet.

The next time you hear a provider telling you usage-capped broadband is the way the rest of the world does business, understand one thing:

They are lying to you.

Stop the Cap! conducted extensive research on just what kind of broadband plans are sold around the world. We researched every member country of the Organization for Economic Cooperation and Development, and included several developing and non-aligned countries for good measure.

Our findings are conclusive: Unlimited broadband packages are the global norm. Some providers sell a mix of “light use” plans with usage allowances, but almost always side-by-side affordable, unlimited use options for those who want them. The only exceptions we found:

• Australia: The most common reason for usage caps comes from lack of capacity.  Countries in the South Pacific continue to experience international capacity shortages that are gradually easing with the introduction of new underseas fiber cables.  Several providers have promised to ease or eliminate caps as new capacity comes online.
• Canada: For reasons of marketplace concentration, lack of competition, and regulatory malpractice, Canadian broadband has lost its former status as a world-leader in broadband and has now become an also-ran, with almost universally usage-capped and throttled broadband from large cable and phone companies delivering expensive, comparatively slow service.
• Iceland: International capacity problems limit international broadband traffic with usage caps, but some providers offer unlimited service for domestic traffic.
• New Zealand: Just like Australia, New Zealand suffers from international capacity problems not seen in Europe, North America, or continental Asia.  Both Australia and New Zealand are using public finances to overcome broadband shortages and reduce or eliminate usage caps.

Some providers in the United States are following Canada’s lead attempting to monetize broadband traffic to maximize profits.  Some Canadian providers claim usage-based billing is necessary to finance the construction of broadband networks across the broad expanse of rural Canada.  Yet Russia, a far larger country with fewer financial resources, succeeds in delivering unlimited service where Canada fails.  Their arguments just don’t add up, and combined with the reality we present here proves providers are telling tall tales about the need for their Internet Overcharging schemes.

If Albania can deliver unlimited Internet access, why can’t your provider?

[Important Update — 7:53am ET 4/7 — Because of a technicality, it is important for everyone to reference H.129 when calling your state senators.  Members of the Senate Finance Committee are still evaluating the House version of the bill — H.129, so senators will more readily identify the bill we are opposing when we reference the House version (and not S.87).  You can also call it the “Level Playing Field” bill, but with disgust.  Include the fact you found the name highly ironic, since the only thing it will “level” are the state’s community broadband networks — right to the ground.  If you already called, why not just send a follow-up e-mail opposing H.129.]

Stop the Cap! has learned lobbyists for North Carolina’s cable and phone companies are growing concerned over increasing opposition to their custom-written duopoly protection bill that will ruin community broadband developments across the state and threaten ones already up and running.  Now they’re in a mad dash to push S.87 (the Senate version of H.129) through the Senate Tuesday before you have a chance to call and express outrage over this corporate protectionism.

Our sources tell us the bill has been yanked from the Senate Commerce Committee and is moving faster than North Carolina’s cable and DSL broadband to the Finance Committee, where bill sponsors hope for a quick voice vote and no public comment allowed.

The engineer of the legislative railroad in the Senate is Sen. Tom Apodaca (R) who serves the western North Carolina counties of Buncombe, Henderson, and Polk — areas with broadband challenges of their own.  Apodaca’s lead role pushing an anti-broadband bill is ironic considering his campaign website lists his priorities as:

• “Great schools for our children.” Western N.C. residents without broadband service at home are forced to resort to sitting in their cars in school parking lots or spend hours at overburdened public libraries to access Wi-Fi networks to complete homework assignments.  Great schools in a digital economy require great broadband – both in school and at home
• “Better paying jobs.” Digital economy jobs are always in demand and bring good salaries.  But those with inadequate broadband will find the kind of entrepreneurial experience and independent study required to excel in these fields hampered by satellite fraudband service or dial-up that limits possibilities and leaves North Carolina behind.
• “Let people keep more of the money they earn.” It’s a great idea, and competition for big cable and phone companies guarantees it.  In Wilson, consumers don’t face annual rate hikes for their cable service.  Can your community say that?  When their network is paid off, Wilson’s GreenLight will start paying off for local residents as well, keeping money in the community.
• “And access to quality health care.” As Google intends to prove in Kansas City, Kansas — great health care and excellent broadband go hand-in-hand to deliver better patient outcomes at a cheaper price.  Every health care provider wants faster broadband to increase efficiency and reduce costs and medical care errors.  S.87 delivers the equivalent of just another metal filing cabinet and fax machine to the back office.  Allowing communities to build fiber broadband changes everything.

What has proven so perplexing to consumers across the state is how a bill written by and for the cable and phone companies that does not deliver a single new broadband connection is getting such love and care from a legislature that is supposed to represent the interests of voters, not multi-billion dollar out of state corporations.  It confuses some of America’s high tech companies as well, including Google, Alcatel-Lucent, and Intel.  They’ve all signed a joint letter opposing H.129/S.87.

In fact, one of the reasons Google picked Kansas City, Kansas for its 1Gbps network is the friendly working relationship it has established with local utilities, which are all owned by the community of Kansas City.  It no doubt speaks volumes to Google that the North Carolina legislature would rather be at war with their towns and cities for the benefit of Time Warner Cable, AT&T and CenturyLink, than allowing communities to build their own broadband networks.  At a time when the FCC has ranked North Carolina worst in the nation, members of the Senate are being asked to guarantee that will remain so for years to come.

So What Should I Do?

Get on the phone -and- e-mail your state senator and demand a NO vote on S.87. If you are shy, you can call before or after business hours and leave a message on their voicemail. It takes less than five minutes.  Your calls make a huge difference because so few constituents ever call state legislators.  Here are your talking points:

Apodaca

1.  At a time when we need all the broadband improvements this state can muster, S.87 destroys those efforts for the benefit of a handful of out of state phone and cable companies. It’s classic protectionism — the same companies that helped write this bill are fully exempted from its onerous requirements.  The practical reality for rural North Carolina is either waiting for existing companies to deliver service they were always free to provide (and won’t), or allowing communities to do it themselves where appropriate.  Why should rural North Carolina have to depend on out of state corporations for basic broadband service many still don’t have?

2.  Not a single company has been harmed by community broadband projects in North Carolina.  In fact, it has created incentive to improve products and services while keeping prices stable, a welcome relief for consumers enduring annual rate increases far outpacing inflation.  Why is the state Senate trying to pass legislation that will guarantee higher bills and worse service?

3.  North Carolina’s fiber networks are not economic failures risking taxpayer dollars.  In fact, protections for taxpayers are already a part of the state code.  The General Assembly has already established: (1) rules governing Public Enterprises (NCGS Chapter 160A, Article 16); (2) strict rules in the Budget and Fiscal Control Act governing all municipal budgets and expenditures, including hearing and disclosure requirements (NCGS Chapter 159, Article 3); and (3) strict oversight of municipal borrowing by the Local Government Commission (NCGS Chapter 159).  S.87 attempts to micromanage public projects to the point where they simply cannot function and pay off bondholders and will, for future projects, ensure they never get off the ground.

4.  Now that the FCC ranks North Carolina dead last in broadband, isn’t it be time to allow new entrants to shake up the market and deliver some competition? Since when is legislating for less broadband better for this state?  The communities of Wilson and Salisbury now have the tools to compete with any wired city in America to attract new digital economy business and jobs.  S.87 sends exactly the wrong message — telling business the state wants to wait for the cable or phone company to eventually (if ever), deliver service other states now take for granted.  Businesses cannot wait.  We cannot wait.

5.  Provisions of this bill are unconstitutional.  By placing illegal regulatory burdens on only public providers of communications services (defined broadly) H.129/S.87 will harm municipal convention centers, public safety networks, smart grid systems, tower leasing contracts, and even make seemingly free public Wi-Fi networks vulnerable to lawsuits if the large incumbents want in on those services.

6.  The only real level playing field in broadband is the one that already exists without S.87.  Tell your senator you are tired of seeing these cable company-written bills come up in the Legislature year after year when the state has more important matters to worry about.  Time Warner Cable will do just fine without S.87, just as they do well in every other state where these kinds of bills would never get passed into law (or even proposed).

Senate Representation By County

2011-2012 Session

(click on your member’s name for contact information)