A $174.2 million consumer fraud settlement has been reached between outgoing New York Attorney General Barbara D. Underwood and Charter Communications, delivering $62.5 million in direct refunds to some customers in former Time Warner Cable Maxx territories in New York State and free premium and streaming services for all current New York customers.

The settlement, likely the largest ever reached with an Internet Service Provider (ISP), comes in response to a 2017 lawsuit filed by former Attorney General Eric Schneiderman, accusing Time Warner Cable of short-changing customers on broadband speed and reliability, by knowingly advertising internet speeds it could not deliver. Time Warner Cable was acquired by Charter Communications in 2016.

“This settlement should serve as a wakeup call to any company serving New York consumers: fulfill your promises, or pay the price,” said Underwood. “Not only is this the largest-ever consumer payout by an internet service provider, returning tens of millions of dollars to New Yorkers who were ripped off and providing additional streaming and premium channels as restitution – but it also sets a new standard for how internet providers should fairly market their services.”

The settlement allows Charter to admit no wrongdoing, but the company is required to compensate Spectrum customers in New York and reform its marketing practices. Going forward, Spectrum must offer evidence through regular speed testing that the company can actually deliver advertised speeds. Charter is also required to continue network investments in New York to improve its internet service.

Lawsuit History

Schneiderman

In 2017, the Attorney General’s office filed a detailed complaint in New York State Supreme Court, alleging that Charter had failed to deliver the internet speed or reliability it had promised subscribers in several respects. That includes leasing deficient modems and wireless routers to subscribers – equipment that did not deliver the internet speeds they had paid for; aggressively marketing, and charging more for, headline download speeds of 100, 200, and 300 Mbps while failing to maintain enough network capacity to reliably deliver those speeds to subscribers; guaranteeing that subscribers would enjoy seamless access to their chosen internet content while engaging in hardball tactics with Netflix and other popular third-party content providers that, at various times, ensured that subscribers would suffer through frozen screens, extended buffering, and reduced picture quality; and representing internet speeds as equally available, whether connecting over a wired or Wi-Fi connection – even though, in real-world use, internet speeds are routinely slower via Wi-Fi connection.

The Attorney General’s office prevailed at every major stage of the court proceedings. After Charter sought to move the case to federal court, the Attorney General’s office won a federal court decision returning it to state court. Charter then moved to dismiss the action on various grounds, including federal preemption; the Attorney General’s office successfully opposed that motion, which the trial court denied in full. When Charter appealed parts of that ruling, the Attorney General’s office prevailed again at the Appellate Division.

Underwood

The Settlement

Under the settlement, New Yorkers will be qualified to receive different levels of compensation as a result of the settlement. Here is what customers can expect:

Only current Charter Spectrum internet customers (including those on legacy Time Warner Cable internet plans) can receive benefits under this settlement. If you do not have service today, but had it in the past, you do not qualify for relief.

Cash Refunds

Only customers living in areas upgraded to Time Warner Cable Maxx service can receive cash compensation. At the time of the lawsuit, this included much of New York City area, the Hudson Valley, parts of the Capital Region, and Syracuse-Central New York. Additionally, the customer must have subscribed to a Time Warner Cable legacy speed plan of 100 Mbps or higher. (Customers in non-Maxx areas including Buffalo/WNY, Rochester-Finger Lakes Region, Binghamton, and the North Country will not receive financial compensation.)

If you did subscribe to 100+ Mbps Time Warner Cable service and still subscribe to either your original legacy plan or have since upgraded to a Spectrum plan, you may qualify for:

• a $75 refund (700,000 subscribers) if you were supplied an inadequate cable modem or Wi-Fi router by Time Warner Cable.
• an additional $75 refund (150,000 subscribers) if you were leasing an inadequate cable modem for 24 months or longer.

You do not need to take any action to get these refunds. Charter Spectrum will notify eligible subscribers about the settlement and provide refunds within 120 days. (If you previously received a refund for being supplied with an inadequate modem, you are ineligible for this cash refund).

Free Services

Only former TWC Maxx customers qualify for cash refunds.

In addition to the direct refunds detailed above, Charter will offer free streaming services to approximately 2.2 million active internet subscribers (both Spectrum and legacy Time Warner Cable plans qualify):

If you currently subscribe to both Spectrum Internet and TV service, you qualify for three free months of HBO or six free months of Showtime. (If you already subscribe to these premium movie channels, you are ineligible for this part of the settlement. If you subscribe to one, but not both of these networks, select the one you do not currently receive.)

If you currently subscribe to internet-only service from Spectrum, you will receive a free month of Charter’s Spectrum TV Choice streaming service—in which subscribers can access broadcast television and a choice of 10 pay TV networks—as well as a free month of Showtime.

Charter will notify subscribers of their eligibility for video and streaming services and provide details for accessing them within 120 days of the settlement. Receiving the video and streaming services as restitution will not affect eligibility for future promotional pricing.

Pro-Consumer Reform

New York also secured groundbreaking reforms in how Charter Spectrum conducts business. Underwood believes these guidelines could serve as a guide for other states to eventually adopt, delivering consumer benefits to cable subscribers everywhere. For now, New York consumers can expect:

• Internet Speed Proof of Performance: Charter must describe internet speeds as “wired,” disclose wireless speeds may vary, and mention that the number of concurrent users and device limitations will impact your actual internet speed. These disclosures must be made in all marketing materials and ad campaigns. Additionally, Spectrum must regularly certify through actual speed testing that it can deliver the speeds it advertises or discontinue any speed plan that cannot be substantiated.
• Truth in Advertising: Charter Spectrum cannot make unsubstantiated claims about the speed required for different internet activities (eg. streaming, gaming, browsing). It also must not advertise internet service as reliable (eg. no buffering, no slowdowns), or guarantee Wi-Fi speed without proof.
• Equipment Reforms: Charter must provide subscribers with equipment capable of delivering the advertised speed under typical network conditions when they commence service, promptly offer to ship or install free replacements to all subscribers with inadequate equipment via at least three different contact methods, and implement rules to prevent subscribers from initiating or upgrading service without proper equipment for the chosen speed tiers.
• Sales and Customer Service Retraining: Charter must train customer service representations and other employees to inform subscribers about the factors that affect internet speeds. Charter must also maintain a video on its website to educate subscribers about various factors limiting internet speeds over Wi-Fi.

Today’s settlement has no bearing on the well-publicized dispute between the New York Public Service Commission and Charter that led the Commission to cancel approval of Charter’s acquisition of Time Warner Cable. Last summer, the Commission voted to throw Spectrum out of the state, but ongoing negotiations between the PSC and Charter are also likely to culminate in a similar settlement including cash fines and new commitments from the cable operator.

Comzilla

Comcast is increasingly invading the territories of neighboring small cable operators, a rare move that could eventually trigger price wars and threaten the informal “gentlemen’s agreement” that has kept cable companies from directly competing with each other for decades.

In New Hampshire, residents of Laconia and Rochester will have a choice between incumbent Atlantic Broadband or newcomer Comcast. 

Comcast is already the dominant cable operator in the state, providing service in 104 communities. The cable company recently filed its draft franchise proposal with Laconia city officials to extend Comcast service into areas already serviced by Atlantic Broadband, an independent cable operator owned by Montréal based Cogeco.

“We believe Laconia offers attractive opportunities for Xfinity and Comcast business products in an area close to Comcast’s existing footprint and part of the same designated market area we already serve,” said Comcast regional spokesman Marc Goodman. “We offer internet speeds of up to two gigabytes per second and 100 gigabytes for businesses. We have an award-winning video platform with voice remote.”

It is the second time Comcast announced it would directly compete with Atlantic in New Hampshire. Comcast is already overbuilding Atlantic’s service area in Rochester and is scheduled to finish sometime next year.

In response, Atlantic has introduced very competitive service and pricing plans to fend off Comcast.

Atlantic Broadband is trying to lock in their customers with two-year rate guarantees and lower introductory prices.

Consumers are thrilled.

“After years of MetroCast’s dark ages of bad service, Atlantic Broadband bought them up, raised some internet speeds, and raised our bill even more,” said Charlie Saunders. “It is real easy to pay a $200 cable bill around here, so I am glad Comcast is giving us a choice.”

Atlantic Broadband, at least in public, seems unfazed about Comcast’s entry. Ed Merrill, Atlantic Broadband’s regional general manager for New Hampshire and Maine stressed his company’s innovations, such as bringing gigabit internet speed to the region and using TiVo set top boxes. 

“Our plans are based not on what other providers are doing, but by anticipating customer needs and preferences, then developing and delivering the kinds of products and services that will make customer lives better, whether they’re residential customers or business clients with customers of their own,” Merrill said in a statement.

Comcast Invasion: Communities Where Consumers Can Also Choose Comcast as Their Cable Company

• Dec. 2017: Rochester, N.H. (Atlantic Broadband vs. Comcast)
• May 2018: Waterford and New London, Conn. (Atlantic Broadband vs. Comcast)
• Summer 2018: Warwick Township, Warwick Borough, Ephratah Township, Ephratah Borough and Lititz, Penn. (Blue Ridge Communications vs. Comcast)
• Nov. 2018: Laconia, N.H. (Atlantic Broadband vs. Comcast)

Grove

Comcast said it is only responding to the public’s demand for more choice and better service, which explains why it is expanding into territories already served by another operator. But so far, Comcast has only chosen to expand in areas adjacent to its current territory, and only in places served by smaller, independent cable companies. In short, Comcast is in no hurry to run cable lines into areas served by Charter/Spectrum or Cox.

A Multichannel News article on the subject suggests Comcast’s real interest is reaching lucrative commercial/business customers just out of reach of their existing service areas. 

“I can tell you that our primary focus is on business service expansion where from time-to-time we explore new opportunities, based on a case-by-case analysis, to bring our state-of-the-art products and services to more businesses,” Bob Grove, vice president of communications for Comcast told the trade magazine. “Some of our existing customers in the contiguous footprint and shared DMA have operations in this area, which is why it made sense for us to expand our commercial network here. We’re also exploring limited residential opportunities, but that’s in the very preliminary stages as well.”

“My heart and wallet skipped a beat,” Lennart Swenson, Jr., told The Laconia Daily Sun. “When we had Comcast, at our last home, they provided superior service and more options for less money than Atlantic Broadband. Comcast was also easier to contact and provided quicker service than has been our experience with Atlantic.”

Some customers also complain Atlantic lures people with temporary teaser rates that exponentially increase after introductory pricing expires. Others report it is difficult to get a representative on the phone.

Competition is “tiresome” for the cable industry

Comcast’s growing interest in expanding service into already-cabled areas means the company will have to convince customers to switch cable providers, something that runs contrary to traditional cable industry economics, where companies carefully avoid direct competition with each other.

“When I started in this business, we all helped each other,” former Buford Media CEO Ben Hooks told Multichannel News. Buford retired in 2018 after a 50-year career in the cable industry. “You don’t see that, especially with Comcast. As far as they’re concerned, there’s them and there’s the rest of the industry.”

Hooks remembers the 1970s and 1980s when cable companies did attempt to expand into each other’s territory.

“In most cases overbuilds were a disaster,” Hooks said. “Neither party won very much, both were fighting for the same customer, cutting prices and neither company was doing well. It was just a tiresome battle.”

But as costs plummet to less than $500 per home to extend fiber to the home service, and the costs to provide internet service continue to fall, cable companies like Comcast can afford the risk of upsetting smaller operators. 

“A company today like Comcast has so much more margin/size over a small company that if they want to expand into an adjacent territory, it is no contest,” Hooks told the trade publication. “Now, if they were to take on Charter, the competition would be a greater challenge. While Comcast still has the advantage, Charter is large enough that it would be ugly.”

Using data from the 2017 American Community Survey (ACS), released in September 2018 by the U.S. Census Bureau, the National Digital Inclusion Alliance ranked all 191 U.S. cities with more than 50,000 households by the percentage of each city’s households that lack home Internet connections of any kind.

Note that this data is not an indication of the availability of home broadband service, but rather of the extent to which households are actually connected to it.

In general, affordability and familiarity are the two biggest impediments that stop someone from signing up for internet access. With broadband providers boosting speeds, but also dropping affordable lower-speed plans, a digital divide based on dollars has worsened in many communities, despite the availability of discounted internet access plans for poor families with school age children or elderly users on disability. Kansas City, Kan. is a remarkable entry at 23rd worst in the country. It, along with its much larger counterpart across the Missouri border, was the first Google Fiber city.

1. Laredo, Texas
2. Brownsville, Texas
3. Hialeah, Florida
4. Detroit, Michigan
5. Cleveland, Ohio
6. Memphis, Tennessee
7. Miami, Florida
8. Philadelphia, Pennsylvania
9. Newark, New Jersey
10. Syracuse, New York
11. Chattanooga, Tennessee
12. Springfield, Massachusetts
13. Milwaukee, Wisconsin
14. New Orleans, Louisiana
15. Shreveport, Louisiana
16. Birmingham, Alabama
17. Mobile, Alabama
18. Macon-Bibb County, Georgia
19. Richmond, Virginia
20. Dayton, Ohio
21. Rochester, New York
22. Topeka, Kansas
23. Kansas City, Kansas
24. Baltimore, Maryland
25. Montgomery, Alabama

AT&T continues to gently discourage the media and investors from comparing its 5G strategy with that of its biggest competitor, Verizon, suggesting the two companies have different visions about where and how 5G and small cells will be deployed.

“We’ve done fixed wireless in our network on LTE as part of our Connect America Fund commitment from the government. We’ve been doing that for two years. And so we know the technology. We know it works, and it works for the purposes intended, which is real broadband,” said Scott Mair, president of operations at AT&T. “The challenge is the use case and the economics, right? So where does fixed wireless work? We’re focused on mobility.”

Mair echoes earlier sentiments from AT&T’s chief financial officer who has repeatedly told investors that AT&T sees fiber to the home service as a superior offering, and one economically within reach for the company in its urban and suburban service areas.

Speaking on Barclays Global Technology, Media and Telecommunications Broker Conference Call, Mair did not rule out 5G residential fixed wireless service in certain expensive-to-reach areas, but it is clear AT&T’s priority will be to bolster its mobile network, not invade the home internet access marketplace. Mair noted AT&T will deploy small cells to power its 5G services, but primarily to resolve congestion issues in high wireless traffic areas.

“If we’re there, we build small cells primarily for capacity,” noted Mair, adding the company believes “the mobility use case is probably the right place to be spending our time and effort.”

AT&T plans to target its first fixed or short-range 5G services on its business customers.

“We see initially enterprise businesses as being the area where the entry will be first,” Mair said. We’ve thought about partnering with a manufacturing firm, and I really believe that manufacturing is going to be a key capability. When you look at a factory floor, it’s real-time telemetry, real-time analytics. You have factories that now need to be more nimble than ever in terms of being able to reconfigure for product changes very quickly. Many types of workshops can also benefit from the value provided by a CNC plasma table software.

AT&T is also continuing to aggressively expand its fiber footprint, including the prospect of constructing fiber networks outside of AT&T’s traditional landline service area. But the company stressed it is building fiber networks in new ways that will maximize the company’s Return On Investment.

Mair

“So with our fiber build-out, fiber underlies everything we do, whether it’s wireline or wireless. And so fiber matters,” Mair said. “By middle of next year, we’ll be at 14 million homes passed and because we also have a deep fiber footprint, we’ll have another eight million businesses that we pass. That gives us 22 million locations that we can sell fiber-based services.”

AT&T’s fiber network planning has become very sophisticated these days. The more customers sharing a fiber connection, the faster construction expenses will be paid off.

When a business client contacts AT&T to arrange for fiber service, the company used to run a dedicated fiber cable directly to the business. These days, AT&T attempts to maximize the potential use of that fiber cable by routing it through areas that have a high potential of generating additional business for the company or traffic on its network. For example, a fiber connection furnished for a business might also be used to serve multiple dwelling units, like apartment buildings or condos, or rerouted to also reach other businesses that can be sold fiber services.

“I’m passing two [AT&T] cell sites that I’m paying someone else transport and backhaul for, where I can now put it on my own network,” Mair offered as an example. “I know where I’m going to be building small cells in the future. We can plan out that. We know where we’re going to be. I can route that fiber. So now I’ve optimized the route.”

Rutledge

Charter Communications is using the benefits of the Republican-promoted tax cut to buy back its own stock, because the only other option under consideration was using the money to buy up other cable operators.

“From a [mergers and acquisitions] perspective, I think cable is a great business. If there were assets for sale that we could do more of, we would do that,” said Charter Communications CEO Thomas Rutledge at this week’s UBS Global Media & Communications Conference. “We’ve been buying a lot of our own stock back. Why? Because we think the cable business is a great business and we haven’t been able to buy other cable assets.”

Charter is not using the company’s lower tax rate to benefit Spectrum customers with lower bills or more extravagant upgrades. Instead, it is accelerating efforts to please shareholders and executives with efforts to boost its share price — something key to top executives’ performance bonuses.

With digital and broadband upgrades nearly complete in areas formerly served by Time Warner Cable and Bright House Networks — the cable companies Charter acquired in 2016 — Rutledge told investors he can initiate additional upgrades without spending huge sums on infrastructure buildouts.

Gigabit speed is now available in most markets, and the company has doubled its lowest internet download speeds in areas where it faces significant competition from AT&T from 100 to 200 Mbps, boosting sales of Spectrum broadband service, according to Rutledge.

Today, about 60% of Spectrum customers are offered 100 Mbps, while the other 40% — mostly in AT&T service areas — are getting 200 Mbps.

Rutledge told investors he does not see much threat from Verizon FiOS or its newly launched 5G offerings, and has no immediate plans to upgrade service in Verizon service areas because neither offering seems that compelling.

“I saw that Verizon had some passings that they could do 800 Mbps in,” Rutledge said. “We have 51 million passings that we can do 1 gigabit in and we can go to 10 gigabits relatively inexpensively and I think we will because I think the world will go to 10 gigabits.”

Analysts are uncertain whether Rutledge’s comments are naïve or brave.

“We see 5G fixed wireless broadband [like that offered by Verizon] as the largest existential threat to broadband providers, by far,” wrote analysts at Cowen. Until now, most broadband competition for cable operators came from phone companies pitching DSL. Verizon retrenched on its FiOS offering several years ago. But AT&T has been more aggressive upgrading urban areas to fiber service, which has forced Charter to respond with higher speeds and better promotions.

Rutledge does not see Verizon’s 5G being a significant competitive threat for several years, and suspects Wall Street may once again punish Verizon for spending money on a wireless network less capable than what the cable industry offers today. Shareholders may also dislike watching Verizon distracted by the home broadband market when portable wireless revenues are much more important to the company.

Verizon officials claim about half of those signing up for its 5G service plan were not current Verizon customers. But the company would not say whether their new fixed wireless customers were coming largely from cable or DSL disconnects, which would prove marketplace disruption.