Is your cable television service included in your rent or condo “services” fee? Have you ever called another provider and told service was not available at your address even through others outside of your condo neighborhood or apartment complex can sign up for service today? Chances are your landlord or property management company is receiving a kickback to keep competition off the property, while you may be stuck paying for substandard services you neither want or need. Worst of all, chances are it’s all legal and everyone is getting a piece of the action… except you.

Welcome to the world of Multiple Dwelling Unit (MDU) Bulk Service Agreements, the seedy underbelly of the anti-competitive cable and telco-TV world. When cable TV first got going, most people wanted access. In the early days, cable franchises were typically exclusive and cable companies maintained the upper hand in negotiations with apartment owners and property owners. Since the service was in demand, many property owners were told to sign whatever “Right Of Entry” Agreement (ROE) was put in front of them. Most contained clauses that guaranteed that cable company would get exclusive access to the property for as long as it was given a franchise to operate within that community. In other words, basically forever.

This turned out very handy when competitors started showing up. First on the scene were satellite television providers, which had a rough time dealing with landlords who loathed tenants installing satellite dishes that “ruined the aesthetics” of the property. Many rental agreements still restrict satellite television dishes in ways that make their use untenable. But things got much more serious when Verizon and AT&T got into the cable business. Initially, both companies found extending FiOS and U-verse to some rental and gated communities was blocked by the exclusive agreements held by cable operators. By 2007, the FCC finally acted to forbid exclusive service contracts, but the cable industry and property developers have played cat and mouse games with the FCC’s loopholes ever since.

Property Developers, Management Companies, Landlords, and Homeowner Associations With Their Hands Out

With the FCC’s 2007 declaration that exclusive contracts between cable companies and property owners were “null and void,” the power of the cable industry to negotiate on their terms was markedly diminished. Although many property owners applauded their new-found freedom to tell the local cable company to take a hike if they did not offer better service to their tenants, many others saw dollar signs in their eyes. With leverage now in the hands of the property owner, if the local cable company wanted to stay, in many cases it had to pay. Only the most brazen property owners kicked uncooperative cable companies off their properties, putting tenants at a serious inconvenience. Instead, many found life more peaceful and lucrative to stick with the existing cable company, signing a new contract for “bulk billing” tenants. On the surface, it seemed like a good deal. Property owners advertised that cable TV was included in the rent (and they paid a deeply discounted price per tenant) and the cable operator had a guaranteed number of customers, whether they wanted the service or not.

Bulk billing also proved a very effective deterrent for would-be competitors, who had to overcome the challenge of marketing their service while the tenant was already paying for another as part of their rent. As a result, telco TV competitors often stayed away from properties with bulk billing arrangements.

As broadband has become more prominent and threatens to become more important than the cable TV package, the cable industry has refined its weapons of non-competition. While they cannot force competitors off properties, they can make life very expensive for them. The latest generation of ROE agreements often grant access rights to the building’s telecommunications conduit, cabling, and equipment exclusively to the cable operator.

If Google Fiber, AT&T U-verse or Verizon FiOS sought to offer service on one of these properties, they would have to overcome the investment insanity of wiring each building with its own infrastructure, including duplicate cables, in separate conduits and spaces not already designated for the exclusive use of the cable company. Verizon in New York City has faced numerous obstacles wiring some buildings, including gaining access to the building itself. Intransigent on site employees, bureaucratic and unresponsive property management companies, and developers have all made life difficult for Verizon’s fiber upgrade.

AT&T often takes the approach “if you can’t beat ’em, join ’em” and offers its own bulk billing incentives, along with occasional commitments for fiber upgrades. Google Fiber can afford to skip places where it isn’t wanted, although with recent revelations that landlords can raise the rent by up to 11% with the arrival of Google Fiber alone, it may hurt to alienate that fiber to the home provider.

Kickbacks for New Developments = Windfall

Kickbacks for existing properties are lucrative, but nothing compared to the lucrative windfall new property developments can achieve with the right deal.

In 2013, one property developer in Maryland went all out for an exclusive deal with a provider that was going to get de facto exclusivity by using a convoluted series of entities and agreements designed to insulate the company from competition and a challenge from the FCC. A court later ruled the provider used an “elaborate game of regulatory subterfuge” using various corporate entities to escape potential competition.

Some lawyers devote a substantial amount of their practice to the issue of bulk contracts and ROE agreements. Carl Kandutsch serves clients nationwide, many trying to extricate themselves from bad deals of the past. In many cases, an attorney may be needed to find a way out of contracts that don’t meet FCC rules. Other communities sometimes have to buy out an existing contract. Many have to sit and suffer the consequences for years. One residential community found itself trapped with a service provider that was quietly protected by an “airtight contract” negotiated not with the property management company or the homeowner association, but the development’s original builder. The provider delivered lousy service and the community spent six years trying to get rid of the offending firm with no result until they hired an attorney. Although happy to be rid of the bad provider, the homeowner association ended up illustrating how pervasive this problem is after it signed a similar contract with another provider also handing out kickbacks.

Comcast pays up to 10% of a renter’s cable bill to the landlord. (Image: Susan Crawford)

Comcast is more creative than most. It calls its handouts: “Marketing Support Compensation.” The property owner gets an increasing reward for every tenant signed up for Comcast service. Once around two-thirds of tenants are subscribed, the owner gets up to a 10% take of each bill, plus a one time payment of up to $130 per tenant.

Because Comcast’s reputation often precedes it, customers reluctant to sign up without considering other providers will find that tougher to do because Comcast bans other providers from marketing their services to tenants with the support or cooperation of the landlord. In other words, no door hangers, free coffee, brochures in the lobby, or any other on-site promotions. In case a property owner forgets, Comcast sends reminders in the mail:

Comcast likes to remind landlords it has an exclusive. (Image: Susan Crawford)

Susan Crawford calls it “astounding, enormous, decentralized payola” and claims it affects millions of renters.

Crawford

“These shenanigans will only stop when cities and national leaders require that every building have neutral fiber/wireless facilities that make it easy for residents to switch services when they want to,” Crawford wrote. “We’ve got to take landlords out of the equation — all they’re doing is looking for payments and deals (understandably: they’re addicted to the revenue stream they’ve been getting), and the giant telecom providers in our country are more than happy to pay up. The market is stuck. Residents have little idea these deals are happening. The current way of doing business is great for landlords and ISPs but destructive in every other way.”

One real world example of how this deters competition comes from Webpass (recently acquired by Google), which offers gigabit Ethernet speeds in select MDUs in San Francisco, San Diego, Miami, Chicago, and Boston. The service comes with a low price, but that doesn’t get the company in the door, according to its president, Charles Barr.

Barr has been refused entry by multiple building owners who have agreements with Comcast, AT&T, or others.

“Tenants want us, but we can’t get in,” Barr said.

Crawford argues the FCC has once again been outmaneuvered by ISPs and their attorneys.

“Sure, a landlord can’t enter into an exclusive agreement granting just one ISP the right to provide Internet access service to an MDU, but a landlord can refuse to sign agreements with anyone other than Big Company X, in exchange for payments labeled in any one of a zillion ways,” added Crawford. “Exclusivity by any other name still feels just as abusive.”

This isn’t a new problem. Stop the Cap! first reported on these kinds of bulk buying arrangements back in 2010, all made possible by the FCC’s regulatory loopholes. Six years later, the problem appears to be getting worse.

Cicconi

The Telecommunications Act of 1996 was the first major overhaul of telecommunications law in almost 62 years, and the deregulation measure supported with ecstasy by many in the telecom industry was signed into law by none other than President Bill Clinton, opening the door to a massive wave of industry deregulation and multi-billion dollar media consolidation.

It therefore comes as no surprise — to some at least — that AT&T’s top lobbyist Jim Cicconi, perhaps rivaled only by Comcast’s David Cohen in power and influence, has endorsed Hillary Clinton for president. The Wall Street Journal reported Cicconi has joined several other Republican corporate executives signing up for Team Hillary this election cycle.

Cicconi is voting Democratic this year, despite supporting every Republican presidential candidate since President Gerald Ford’s run against Jimmy Carter in 1976. This year is different, he claims.

“I think it’s vital to put our country’s well being ahead of party,” he said in a statement provided by the Clinton campaign. “Hillary Clinton is experienced, qualified, and will make a fine president. The alternative, I fear, would set our nation on a very dark path.”

Comcast’s David Cohen is also well-known for leaning to the left, and has been considered a friend of the Obamas since they took office in 2009. Cohen hosted 120 people in his home for a dinner in 2011 on behalf of Obama’s 2012 re-election campaign. It was an expensive dinner — each guest contributed at least $10,000.

The alternative, Donald Trump, represents what corporate America and Wall Street hates above all else – unpredictability and uncertainty.

Telecom issues have not made a big splash this year in either campaign, and regardless of who wins, their appointments to regulatory agencies like the FCC can have a major impact on consumer broadband initiatives and public policy. A Clinton administration could result in appointments of “centrist” Democrats that Bill favored during his two terms in office. Many of those former regulators are now lobbyists for the telecom industry. Or Hillary could move closer to Obama’s surprisingly tough pro-consumer policies on broadband issues and keep Thomas Wheeler at the helm of the FCC for a few more years.

Cicconi would be pleased to see someone like former Tennessee congressman Harold Ford, Jr., take a seat at the FCC under a future Clinton Administration instead. Ford has served as an honorary co-chairman of Broadband for America, an industry-sponsored astroturf operation, for most of Obama’s two terms in office. He remains a close friend of both Bill and Hillary and is never far from the public eye, turning up regularly on MSNBC.

Broadband for America supports deregulation, opposes Net Neutrality, and essentially shills for its corporate sponsors. Rep. Ford would likely oppose Net Neutrality and continue support for near-total deregulation.

Verizon has also shown itself to be a Friend of Hillary. Three Verizon vice presidents each donated $2,700 to Hillary for America. They were joined by a senior vice president and another vice president, who gave an additional $1,000, according to Salon. A former Hillary Clinton operative who now lobbies for Verizon donated $2,700 as well, along with another Verizon lobbyist who pitched in $1,000.

While Bernie Sanders joined striking Verizon workers on the picket line, the Clinton campaign was cashing checks worth tens of thousands of dollars from Verizon executives and lobbyists. In May 2013, the telecom company paid Hillary a $225,000 honorarium in return for a speech (the text has not been disclosed) to Verizon executives.

The Clinton Foundation also benefited from Verizon contributions ranging from $100,000-250,000.

June 16, 2016

Hon. Kathleen H. Burgess
Secretary, Public Service Commission
Three Empire State Plaza
Albany, NY 12223-1350

Dear Ms. Burgess,

Today, we confirmed that Charter Communications has ordered an indefinite suspension of the Time Warner Cable Maxx broadband upgrade program pending a review that seems to carry no specific timeline for completion.[1]

We are deeply concerned about the implications of this decision, particularly as Time Warner Cable has been performing broadband upgrades this spring and summer in the Hudson Valley[2] and Syracuse/Central New York[3] regions that deliver important speed upgrades to customers in New York State. We have good information that Rochester was the next city scheduled for these upgrades, followed by Buffalo. These upgrades would have provided customers with up to 300Mbps broadband service as soon as late this year across a significant section of upstate New York, with the western New York/Buffalo region upgraded in 2017.

It is clear the only reason these upgrades have been suspended relates to the recent ownership change of Time Warner Cable, approved by the N.Y. Public Service Commission.

As you know, Stop the Cap! argued our concerns about approving the merger transaction between Charter Communications and Time Warner Cable, in part because Time Warner Cable’s Maxx upgrade program offered more compelling broadband upgrades, at a lower price, and introduced faster than Charter’s own offer.[4]

The alarming development of an indefinite nationwide suspension of the Maxx upgrade program has profound implications on large sections of upstate New York waiting for urgently needed broadband speed upgrades. The announcement also suggests large sections of New York will be waiting much longer to reach speed parity with cities, mostly downstate, that already enjoy up to 300Mbps service on an upgraded, less trouble-prone network.

Once again, New Yorkers are being divided into those with reasonably fast speeds, and those without. Should Charter adopt the slowest possible upgrade schedule permitted by the Commission, several upstate cities will be waiting until the end of 2018 – almost two years, to receive 100Mbps broadband.[5] I’d remind the Commission other major cable companies are offering residential customers speeds up to 2Gbps today[6], and many already offer tiers that well exceed Charter’s promised maximum speed.

Charter’s corporate decisions also impact New Yorkers more profoundly than other states because of the absence of significant competition. Outside of limited deployments of Verizon FiOS, DSL continues to predominate from New York telephone companies, including Verizon, Frontier, TDS, Windstream, and others. In most cases, these speeds do not come close to achieving the minimum 25Mbps speed that the FCC defines as “broadband.”

In states to our west, AT&T is already offering gigabit Internet service to residential customers, and Google Fiber (which has bypassed the entire northeastern U.S. for fiber deployment) continues its own expansion.

We urge the Commission to obtain definitive information about the current Maxx upgrade delay, the reasons for it, the timetable to resume upgrades (if ever), and an assurance that Charter Communications will resume a comparably rapid Maxx-equivalent upgrade for New Yorkers that Time Warner Cable was well on its way to complete within the next two years. We also hope the Commission will share its findings with the general public.

Yours very truly,

Phillip M. Dampier
Director

[1] Text of a company memo obtained by Stop the Cap! originally sent to Time Warner Cable’s engineering/customer support team: “The Maxx Internet Speed Increase Program is currently undergoing review by our leadership team. As a result, all speed increases and customer communications were placed on a temporary hold beginning Thursday, May 26. Once the updated launch schedule is determined, updated hub schedules will be posted to KEY and area management will be notified. Customers will continue to receive notification when the new speeds are available in their hubs.” (http://stopthecap.com/2016/06/16/charter-indefinitely-suspends-time-warner-cable-maxx-upgrades-pending-review/)

[2] http://www.timewarnercable.com/en/about-us/press/twc-increases-internet-speed-hudson-valley.html

[3] http://www.timewarnercable.com/en/about-us/press/twc-to-transform-tv-internet-experience-central-northern-ny.html

[4] http://documents.dps.ny.gov/public/Common/ViewDoc.aspx?DocRefId={FCB40F67-B91F-4F65-8CCD-66D8C22AF6B1}

[5] http://documents.dps.ny.gov/public/Common/ViewDoc.aspx?DocRefId={DEE1823A-AADD-48D4-94BD-B96BAC096DAA}

[6] http://www.xfinity.com/multi-gig-offers.html

Wheeler

FCC chairman Thomas Wheeler today told an audience at the National Press Club that 5G — the next generation of wireless networks — “is a national priority, and why, this Thursday, I am circulating to my colleagues proposed new rules that will identify and open up vast amounts of spectrum for 5G applications.”

Wheeler’s proposal, dubbed “Spectrum Frontiers,” is supposed to deliver wireless connectivity as fast as fiber optic broadband, and in Wheeler’s view, will deliver competitive high-speed access for consumers.

“If the Commission approves my proposal next month, the United States will be the first country in the world to open up high-band spectrum for 5G networks and applications,” said Wheeler. “And that’s damn important because it means U.S. companies will be first out of the gate.”

Central to Wheeler’s 5G proposal is opening up very high frequency millimeter wave spectrum — for unlicensed and licensed data communications. Wheeler named two in his speech: a “massive” 14GHz unlicensed band and a 28GHz “shared band” that will allow mobile and satellite operators to co-exist.

“Consider that – 14,000 megahertz of unlicensed spectrum, with the same flexible-use rules that has allowed unlicensed to become a breeding ground for innovation,” Wheeler said.

“Sharing is essential for the future of spectrum utilization. Many of the high-frequency bands we will make available for 5G currently have some satellite users, and some federal users, or at least the possibility of future satellite and federal users,” Wheeler noted. “This means sharing will be required between satellite and terrestrial wireless; an issue that is especially relevant in the 28GHz band. It is also a consideration in the additional bands we will identify for future exploration. We will strike a balance that offers flexibility for satellite users to expand, while providing terrestrial licensees with predictability about the areas in which satellite will locate.”

The CTIA – The Wireless Association, America’s largest mobile carrier lobbying and trade association, is all for opening up new spectrum for the use of their members — AT&T, Verizon Wireless, Sprint, T-Mobile, among others. They just don’t want to share it. Ironically, they are calling on the FCC to regulate who gets access to what frequencies and what services can use them. They’d also appreciate federal rules restricting or preempting local officials responsible for approving where new cell towers can be located, and some form of price regulation for backhaul services would also be nice:

First, we need the right rules for high-band spectrum based on a time-tested regulatory framework. It must strike a reasonable balance for licensed and unlicensed use while promoting investment with clear service and licensing rules. We should avoid experimenting with novel spectrum sharing regimes or new technology mandates.

Second, we need the right rules to help build our 5G infrastructure. Traditional spectrum travels many miles, depending on large cell towers to transmit signals. In contrast, high-band spectrum – capable of carrying greater amounts of data –travels meters, not miles and will require the deployment of thousands of new small cells the size of smoke alarms. This network evolution requires a new infrastructure approach, and Congress, the FCC and states must streamline and simplify local siting and rights of way rules.

Wheeler recognizes that 5G services will work very differently from the 3G and 4G networks we’ve used in the past.

CTIA is the wireless industry’s biggest lobbyist and trade association.

“5G will use much higher-frequency bands than previously thought viable for mobile broadband and other applications,” Wheeler said. “Such millimeter wave signals have physical properties that are both a limitation and a strength: they tend to travel best in narrow and straight lines, and do not go through physical obstacles very well. This means that very narrow signals in an urban environment tend to bounce around buildings and other obstacles making it difficult to connect to a moving point. But it also means that the spectrum can be reused over and over again.”

In other words, think about 5G as an initially limited range wireless network that may turn out to be best suited for fixed wireless service or limited range hotspots, especially before network densification helps make 5G service more ubiquitous. The wireless industry doesn’t think Wheeler’s vision will be enough to resolve capacity issues in the short term, and is calling on the FCC to release even more low and mid-band spectrum in the 600MHz range that can travel inside buildings and offer a wider coverage area.

Wheeler’s recognition that 5G’s shorter range signals will likely require a massive overlay of new infrastructure has also opened the door for the CTIA to call on the FCC to revisit local zoning and antenna placement rules and policies, with the likely goal of preempting or watering down local authority to accept or reject where cell phone companies want to place their next small cell or cell tower. Wireless companies are also expected to push for easy access to utility poles, time limits to approve new cell tower construction applications, and pricing regulation for fiber lines needed to connect 5G infrastructure to backhaul networks.

Cell tower camouflage failure.

On the issue of backhaul — the connection between a cell tower and the wireless carrier’s network, the FCC is planning a pro-regulatory “anchor pricing” approach to benefit wireless companies. Consumers can also relate to being overcharged for slow speed Internet access with little or no competition, but the FCC is only acting for the benefit of the wireless companies for now — the same companies that would undoubtedly complain loudly if anchor pricing was ever applied to them.

“Lack of competition doesn’t just hurt the deployment of wireless networks today, it threatens as well to delay the buildout of 5G networks with its demand for many, many more backhaul connections to many, many more antennae,” complained Wheeler. “Before the end of this year the Commission will take up a reform proposal – supported by the nation’s leading wireless carriers, save one – that will encourage innovation and investment in Business Data Services while ensuring that lack of competition in some places cannot be used to hold 5G hostage.”

While Wheeler’s goals are laudable, there are stunning examples of hypocrisy and self-interest from the wireless industry. Yet again, the industry is seeking regulatory protection from having to share spectrum with unlicensed users, existing licensees, or competitors.  No letting the “free market” decide here. Second, there are absolutely no assurances the wireless industry will deliver substantial home broadband competition. Verizon and AT&T will be effectively competing with themselves in areas where they already offer wired broadband. Is there a willingness from AT&T and Verizon to sell unlimited broadband over 5G networks or will customers be expected to pay “usage pack”-prices as high as $10 per gigabyte, which doesn’t include the monthly cost of the service itself. Offering customers unlimited 5G could cannibalize the massive profits earned selling data plans to wireless customers.

Cactus or cell tower

Upgrading to 5G service will be expensive and take years to reach many neighborhoods. Verizon’s chief financial officer believes 5G wireless will be more cost-effective to deploy than its FiOS fiber to the home network, but considering Verizon largely ended its deployment of FiOS several years ago and has allowed its DSL customers to languish just as long, 5G will need to be far more profitable to stimulate Verizon’s interest in spending tens of billions on 5G infrastructure. It does not seem likely the result will be $25/month unlimited, fiber-like fast, Internet plans.

Although the mobile industry will argue its investment dollars should be reason enough to further deregulate and dis-empower local officials that oversee the placement of cellular infrastructure, it would be a tremendous mistake to allow wireless carriers to erect cell towers and small cells wherever they see fit. Most small cells aren’t much larger than a toaster and will probably fit easily on utility poles. But it will likely spark another wave of pole access controversies. The aesthetics of traditional cell tower placement, especially in historical districts, parks, and suburbs, almost always create controversy. The FCC should not tip the balance of authority for tower placement away from those that have to live with the results.

The mobile industry doesn’t make investments for free, and before we reward them for investing in their networks, let’s recall the United States pays some of the highest mobile service prices in the world. The industry argues what you get in return for that $100+ wireless bill is better than ever, an argument similarly used by the cable industry to justify charging $80 a month for hundreds of channels you don’t watch or want. Therefore, incentives offered to the wireless industry should be tied to permanent pro-consumer commitments, such as unlimited 5G broadband, better rural coverage, and the power to unbundle current wireless packages and ditch services like unlimited texting many customers don’t need. Otherwise, it’s just another one-sided corporate welfare plan we can’t afford.

Time Warner Cable customers getting inundated with ads promising great things from Charter’s buyout of Time Warner Cable have their first broken promise from “Spectrum” to contend with instead.

Charter Communications has quietly informed Time Warner technicians and network engineers — but not customers — it has indefinitely suspended the Time Warner Cable Maxx upgrade program until further notice until the new leadership team “reviews” the program.

“The Maxx Internet Speed Increase Program is currently undergoing review by our leadership team. As a result, all speed increases and customer communications were placed on a temporary hold beginning Thursday, May 26. Once the updated launch schedule is determined, updated hub schedules will be posted to KEY and area management will be notified. Customers will continue to receive notification when the new speeds are available in their hubs.”

The internal Time Warner Cable memo, now confirmed as genuine by Time Warner, suggests the hold is temporary, but sources tell us Charter executives are reviewing expenses across the board to find cost saving opportunities. Most states approving the transaction gave Charter plenty of room to maneuver while approving its merger deal because of Charter’s considerably less aggressive upgrade schedule, in comparison to Time Warner Cable. Few states asked Charter for anything more than what Charter volunteered itself.

Charter has formally committed to offering two broadband speed tiers: 60 and 100Mbps by 2019. Except in New York, where regulators insisted on more aggressive upgrades that match Maxx speeds, Charter is within its rights as the new owner to discard or ignore any earlier commitments or public statements previously made by Time Warner Cable management.

Stop the Cap! filed comments last year opposing Charter’s merger in New York, California, and with the Federal Communications Commission, arguing Charter’s claimed merger deal benefits offered to regulators represented a step backwards for Time Warner Cable customers. Time Warner Cable had previously committed to move forward on its Maxx upgrade program, which offers Internet speeds three times faster than what Charter is promising, on a schedule that would have likely finished upgrades by the end of next year or early 2018. Charter has only committed to complete its less compelling speed upgrade to a maximum 100Mbps by the end of 2019 — three years from now.

We will continue to notify regulators about Charter’s performance to compel action and raise public awareness of any gaps between Charter’s glowing promises of better things to come in their letters and TV spots and what actually happens on the ground. It is not a good start for “Spectrum” with consumers, just days after customers received a welcome letter in the mail signed by Charter CEO Tom Rutledge. Less than two weeks later, some customers already feel like they’ve been lied to.