Cruz Control

A group of Republican senators are warning the chairman of the Federal Communications Commission he’d better not touch statewide bans on community broadband networks.

In a letter sent to FCC Chairman Tom Wheeler, Republican Sens. Deb Fisher, Ron Johnson, Ted Cruz, Mike Enzi, John Barrasso, Pat Roberts, Lamar Alexander, John Cornyn, Tom Coburn, Tim Scott and Marco Rubio slammed Wheeler for his willingness to override or ignore state laws co-written by cable and telephone companies that banish municipal broadband from providing any competition.

“The insinuation that the Federal Communications Commission will force taxpayer-funded competition against private broadband providers — against the wishes of the states — is deeply troubling,” said the senators. “Inserting the commission into states’ economic and fiscal affairs in such a cavalier fashion shows a lack of respect for states’ rights,” they said.

Comcast, AT&T, Verizon, Time Warner Cable, and other operators are among the campaign contributors of the nine senators.

Echoing the sentiment of the cable and phone companies, the Republicans called community owned broadband “an unnecessary and risky government liability” and warned Wheeler there would be consequences if he was serious about ignoring the state laws, many enacted with the assistance of the American Legislative Exchange Council (ALEC).

“State political leaders are accountable to the voters who elect them, and the Commission would be well-advised to respect state sovereignty,” said the senators. “We look forward to your timely response, and we hope you will think critically about the Commission’s role and how it can more appropriately interact with our state authorities.”

Community broadband has largely been the only wired competitor facing off against cable and phone companies. Consumers have a much bigger chance of seeing a municipal provider in their community than Google Fiber or another overbuilder.

“Those are nine senators that moonlight for Comcast and AT&T I won’t be voting for,” says Stop the Cap! reader Tom Resden who shared the story. “Municipal broadband balances a playing field that has favored big cable and phone companies for years. These are the same type of senators that 100 years ago would have opposed municipal power and co-ops, willing to leave people in the dark rather than allow a player that answers only to customers get traction. It’s not a state rights issue when the corporations wrote the legislation their well-funded lackeys in statehouses around the country helped hurry into law. What we are really talking about is the corporate right to suppress competition.”

[flv]http://www.phillipdampier.com/video/CNN Netflix Slowdown Who is to Blame 6-6-14.flv[/flv]

CNN explores who is responsible for Netflix’s streaming problems on Verizon FiOS and AT&T U-verse. While one industry analyst seems keen to blame Netflix, his other articles on the subject show an increasing bias towards big ISPs like Verizon and AT&T. (2:54)

Netflix’s May speed rankings confirm Verizon FiOS customers are likely to find a degraded video streaming experience while using the otherwise speedy fiber to the home service. Netflix performance on Verizon FiOS dropped considerably last month — so much so that Frontier and Windstream DSL customers now get better Netflix performance than any Verizon customer receives. AT&T U-verse customers fared even worse with streaming performance below that offered by Mediacom — America’s bottom-rated cable company and CenturyLink DSL. In fact AT&T U-verse customers receive only marginally better service than Hughes satellite and Clearwire wireless customers. Verizon’s DSL came in dead last.

Coincidentally, both Verizon and AT&T, following Comcast’s lead, have been in negotiations with Netflix to receive payment from the streaming video provider to better handle its traffic. Verizon CEO Lowell McAdam said he’s confident about getting payments from Netflix, and he turned out to be correct — Verizon and Netflix reached an agreement in late April that is still being implemented. AT&T also says it is negotiating with Netflix. Verizon’s streaming video partnership with Redbox has not been affected by the sudden deterioration in online video streaming on Verizon’s network.

The problems with Netflix on some ISP’s have gone all the way to the top.

“My wife and I like to lay in bed and watch Netflix,” Tom Wheeler, chairman of the US Federal Communications Commission, said in January. The two companies serving Wheeler’s neighborhood are Comcast and Verizon. When enough customers launch streams on Netflix, saturating the inbound connection to either ISP, the video stops. When it does, Wheeler’s wife joins the parade of irritated customers.

“You’re chairman of the FCC,” she says to him. “Why is this happening?”

Last week, Netflix decided to answer that question with a more informative error message appearing when available bandwidth is insufficient to support a high quality stream.

“The Verizon network is crowded right now,” the message says. Netflix then attempts to restore the stream by serving up a degraded, lower quality/bit rate version to the paying customer.

[flv]http://www.phillipdampier.com/video/Bloomberg Netflix-Verizon War of Words 6-6-14.flv[/flv]

Bloomberg interviews Todd O’Boyle from Common Cause. He places the blame for this debacle solely on the shoulders of Verizon and other ISPs. (5:39)

The inability to successfully maintain a stable stream of Netflix content that ranges from 256kbps to 5.8Mbps seems odd on ISPs that offer customers connections far faster than that. The average Netflix stream is 2Mbps, slow enough to be comfortably supported on even a 3Mbps DSL connection. Netflix’s problems with Comcast evaporated after agreeing to pay the cable company to maintain a better connection between its customers and Netflix’s content delivery network. The same cannot be said for perfomance on AT&T’s U-verse platform. Although Verizon signed an agreement with Netflix, it has clearly not been implemented as of yet.

“We started a small-scale test in early May that lets consumers know, while they’re watching Netflix, that their experience is degraded due to a lack of capacity into their broadband provider’s network,” said Netflix’s Joris Evers. “We are testing this across the U.S. wherever there is significant and persistent network congestion.”

The companies with the biggest drops in Netflix performance are the same ones strongly advocating special paid “fast lanes” on the Internet for preferred traffic to resolve exactly these kinds of performance problems.

“Some large US ISPs are erecting toll booths, providing sufficient capacity for services requested by their subscribers to flow through only when those services pay the toll,” said Evers. “In this way, ISPs are double-dipping by getting both their subscribers and Internet content providers to pay for access to each other. We believe these ISP tolls are wrong because they raise costs, stifle innovation and harm consumers. ISPs should provide sufficient capacity into their network to provide consumers the broadband experience for which they pay.”

The error message fingering Verizon as the culprit for a poorer Netflix experience brought an angry response from Verizon on its blog:

Reports from this morning have suggested that Netflix is engaging in a PR stunt in an attempt to shift blame to ISPs for the buffering that some of its customers may be experiencing. According to one journalist’s tweet from last night, Netflix is displaying a message on the screen for users who experience buffering which says: “The Verizon network is crowded right now.”

This claim is not only inaccurate, it is deliberately misleading.

The source of the problem is almost certainly NOT congestion in Verizon’s network. Instead, the problem is most likely congestion on the connection that Netflix has chosen to use to reach Verizon’s network. Of course, Netflix is solely responsible for choosing how their traffic is routed into any ISP’s network.

[…] It is sad that Netflix is willing to deliberately mislead its customers so they can be used as pawns in business negotiations and regulatory proceedings.

It would be more accurate for Netflix’s message screen to say: “The path that we have chosen to reach Verizon’s network is crowded right now.”

However, that would highlight their responsibility for the problem.

Milch

That was quickly followed by a cease and desist letter from Verizon demanding Netflix remove error messages that blame Verizon for the problem. It also demanded a list of Verizon customers that received the Netflix notification.

“Failure to provide this information may lead us to pursue legal remedies,” wrote Verizon general counsel Randal Milch in a letter to Netflix general counsel David Hyman.

“This is about consumers not getting what they paid for from their broadband provider,” Netflix spokesman Jonathan Friedland said. “We are trying to provide more transparency, just like we do with the ISP Speed Index, and Verizon is trying to shut down that discussion.”

“Verizon’s unwillingness to augment its access ports to major Internet backbone providers is squarely Verizon’s fault,” Netflix general counsel David Hyman wrote.

“Netflix does not purposely select congested routes,” added Evers. “We pay some of the world’s largest transit networks to deliver Netflix video right to the front door of an ISP. Where the problem occurs is at that door — the interconnection point — when the broadband provider hasn’t provided enough capacity to accommodate the traffic their customer requested.”

Despite all that, Netflix also admitted it plans to drop the error messages after the “small-scale test” ends on June 16.

[flv]http://www.phillipdampier.com/video/CNBC Buffering Blame Game 6-6-14.flv[/flv]

CNBC explains how Netflix content gets to end viewers over a complicated series of Internet connections between Netflix and your ISP. (1:31)

Subscribers of more than 900 independent cable companies may face an unwelcome surprise this summer in the form of a mid-year rate increase.

For years, members of the National Cable Television Cooperative (NCTC) have joined forces to negotiate for the kinds of volume discounts only the largest cable and satellite companies like Comcast, Time Warner Cable, DirecTV, Dish Networks, Charter, and Cablevision have traditionally received. NCTC members range from family owned cable operators, rural co-ops, community-owned providers, independent telephone companies, and small multi-system operators servicing multiple communities. With group-buying power, NCTC-member cable companies used to be able to negotiate volume discounts that could keep their rates competitive with larger providers.

But as consolidation among major network media, cable, satellite, and phone companies marches on, only the largest operators — some directly affiliated with the cable programming networks — are getting the best deals at contract renewal time. All NCTC members combined serve just five million cable TV subscribers. Comcast has 21 million, DirecTV: 20 million, Dish Networks: 14 million, and Time Warner Cable: 11 million.

When NCTC’s contract with Viacom was up for renewal, the owner of networks like MTV and Comedy Central raised the renewal price more than 40 times the rate of inflation. In fact, Viacom’s asking price was so high, operators like Cable ONE pulled the plug on 15 Viacom networks for good and replaced them with other programming. NCTC members eventually compromised on a deal to renew Viacom-owned networks, but customers of companies like Massillon, Ohio-based MCTV are paying the price in the form of a mid-year rate hike Bob Gessner, MCTV’s president, did not want to have to pass on to customers.

“I don’t like to do this because it puts me in a difficult position of raising prices, which no one likes, or reducing the product, which no one likes, or cutting back on the quality of our customer service, which no one likes,” said Gessner. “Large media companies control all the TV programming and they are raising the price.  The cost of TV programming is rising very rapidly and it is causing this rise in retail prices.”

Some facts about cable TV programming:

• Nine media companies control 95% of the paid video content consumed in the U.S.;
• The average household watches only 16 channels, yet networks package their channels to force you to buy those you don’t want to get those that you do want;
• Programming network fees account for the bulk of your monthly cable bill;
• The cost of basic cable has risen 3½ times the rate of inflation over the last 15 years because of demands from networks for higher programming fees;
• One media company honcho recently stated that, “…content is such a fundamental part of daily life that people will give up food and a roof over their heads before they give up TV.” This shows that they have lost their perspective and the demands for huge increases will continue.

Gessner

Gessner has broken ranks with many cable operators that say little more at rate hike time than “increased programming costs.”

Gessner has produced a 20-minute video that carefully explains to his customers what is going on in the cable programming industry and why providers like MCTV are forced to shovel networks onto cable lineups few customers want or watch and how the biggest cable and satellite companies are now negotiating volume-discounted renewal pricing at the expense of smaller providers.

While the largest cable companies in the country secure lower rates through those volume discounts, programmers have found a way to make up the difference: demanding even higher rates for smaller cable companies to cover what they lose from Comcast and other big players.

Gessner, as well as other NCTC member companies, confront huge programmers like Comcast-NBCUniversal, Viacom, Time Warner (Entertainment), Discovery and Disney that first demand 3-7 year renewal contracts with built-in, automatic annual rate increases averaging 5-10 percent, regardless of the ratings of their networks. Most also demand that all of their cable networks be carried on their systems, whether customers are interested in them or not. If these companies dream up new cable networks, like ESPN’s SEC Network and the Longhorn Network, MCTV is committed to carry those channels as well, even though they are of little interest to residents of northeastern Ohio where MCTV operates.

These dream contracts (for cable programmers) are the single biggest reason cable-TV rates are skyrocketing. But Gessner says it gets even worse when those contracts expire. When renewal negotiations begin, programmers these days inevitably demand a “rate reset” which starts rate negotiations at a price 10, 30, even 60 percent higher than under the expiring contract.

Those dollar amounts cover local station retransmission consent agreements nationwide.

Gessner says he doesn’t know how much longer MCTV can afford to carry expensive networks like sports channels. If he drops them, angry subscribers could cancel cable service and switch to a provider willing to pay the asking price. Unless all of his competitors stand together, programmers will maintain the upper hand.

Some cable companies, like Cable ONE, are starting to risk the wrath of their customers by refusing to negotiate for terms they consider unreasonable. When subscribers learned the reasons why Cable ONE dropped more than dozen Viacom channels, many were supportive because the company replaced the networks with other channels and promised to keep rate increases down because they won’t have to pass on Viacom’s higher prices. Viacom retaliated by locking out Cable ONE’s Internet customers from accessing any of Viacom’s free-to-view online programming.

“Viacom lets web surfers from Albania watch Spongebob but Viacom blocks people who live in Alabama, and if you are an advocate of this thing called Net Neutrality, you should be very concerned,” Gessner said. “Viacom is blatantly violating the spirit of Net Neutrality by discriminating against certain Internet users in order to extract higher fees from TV viewers. That’s the sort of vicious bullying behavior many of the content companies use to maintain their stranglehold on the U.S. television industry.”

Gessner and other independent cable operators hope cable operators’ willingness to drop cable networks over their price is the start of something big — a pushback that could eventually force programmers to charge rational rates.

“Hopefully this will serve as a wakeup call to the rest of the industry to stop paying these ridiculous prices for TV rights,” said Gessner. “I have no illusion that sanity will come to the industry overnight — it will take time — but this is a step in the right direction.”

[flv]http://www.phillipdampier.com/video/MCTV Rate Increase 2014.flv[/flv]

MCTV president Bob Gessner hosted this thoughtful presentation to carefully explain why his customers are facing a $1-3 mid-year rate increase for cable television. Gessner breaks with tradition by explaining the cable television business model is effectively broken and needs serious reform, including more choices for customers seeking fewer channels and a lower bill. It’s well worth 20 minutes of your time. (20:11)

Keep an independent eye on the scale

Without independent verification by an unbiased third-party, providers’ usage meters can measure any amount of usage — correct or not — with no recourse for those facing overlimit fees or service suspension.

That is why companies like Comcast depend on the patina of credibility a third-party company can offer when certifying Internet traffic measurement tools as accurate, even if that company has a vested interest handing Comcast the results it wants to see.

NetForecast just completed its third paid study of Comcast’s Internet meter declaring it amazingly accurate with an error rate of just -0.75 to 0.36%.

NetForecast claims it performed independent traffic measurements using real user traffic in subscribers’ homes as well as its own in-house PC and server.

“Based on our measurement results, Comcast subscribers should be able to rely on Comcast’s meter accuracy,” NetForecast says.

Comcast subscribers should also be able to rely on the fact that any cable company that involved with its usage measurement meter has a clear agenda to use it as part of a nationwide return to usage caps or usage-based billing.

NetForecast is no substitute for utilizing a financially uninvolved third-party to oversee any measurement tool that could expose customers to additional charges.

The country has been through this before.

Offices of Weights and Measures represent one of the country’s oldest efforts at consumer protection and trace their origins to the Code of Hammurabi, the Magna Carta and the United States Constitution. Most states created their own bureau to verify all sorts of measurement tools from scales to gas pumps in the early 1900s after an epidemic of widespread fraud shortchanged citizens.

Measure with confidence.

By 1910, the California Legislature was engaged in a battle with the railroads over the accuracy of scales used to weigh railway cars. Railroad tariffs for hauling goods were based on the weight or measurement of the commodity carried. The railroad industry occasionally hired so-called “independent” third parties to certify the accuracy of railway scales to fend off government regulation and oversight after reports of widespread fraud reached the legislature. It didn’t solve the problem.

In 1920, 52.4% of railroad scales, including those “certified” accurate were found to be well out of tolerance. When the industry knew the state of California’s Office of State Superintendent of Weights and Measures would oversee testing a year later, every scale tested in 1921 was suddenly accurate within tolerance.

The problem of accurate measurement was not limited to the railroads. Californian cattle and livestock ranchers faced dishonest hay balers that ginned up the cost of hay by sneaking in heavy debris like rocks and using inaccurate scales to charge higher prices. The 1919 Hay Baling Act was passed to ensure accuracy in the sale of hay and to stop the fraud and abuse the hay balers denied ever existed.

In Maryland, the fraud came from scales used by grocers and gas pumps — both rigged by their respective owners to deliver bigger profits at the consumer’s expense.

In the 1971 Report of the 56th National Conference on Weights and Measures, E.E. Wolski, manager of quality control at the Colgate-Palmolive Company considered it unthinkable that anyone other than a truly independent, financially uninvolved third-party should monitor the accuracy of measurement tools.

This Maryland gas pump is being verified for accuracy by the Weights & Measures program run by the state government.

“I do not think anyone will be so naïve as to even suggest that an elimination or reduction of inspection or enforcement would result in anything other than a return to the situation which made the need for them so apparent,” said Wolski. “It is a well-known fact that where enforcement drops off, so does compliance.”

In one state where private companies were permitted to self-certify, inaccuracy turned out to be rampant.

“I was informed that the average gallon was about a half pint short and that an average pound had been a little less than an ounce short,” Wolski said. “The shortages had been statewide and were almost universal.”

The state-employed director that finally established independent oversight of weights and measurements in light of the widespread fraud Wolski talked about was firm in his conclusion that “everybody, literally everybody (and that includes you and me), needs to know that someone is there watching what he does.”

Any financial interest in the outcome of a weight or measurement involving money is a temptation to cheat consumers, one that has effectively only been tempered all the way back to the days of King Solomon by truly independent oversight, typically by a state or local authority. That authority is on display today in the form of a compliance sticker found on commercial scales, gas pumps, and other measurement tools, attesting to their accuracy.

While it is nice Comcast at least bothers to investigate the accuracy of its usage meter, consumers should not be asked to trust the findings of a third-party paid to produce results. Consumers should insist that a truly independent regulator of weights and measurements regularly test and verify usage meters wherever they could be used to suspend a customer’s account or result in extra fees.

The New York State Public Service Commission has invited Stop the Cap! to testify about the impact of Comcast and Time Warner Cable merging on New York State residents.

Our testimony will concentrate on an examination of whether the merger is in the best interests of consumers and customers, focusing on issues ranging from usage caps to broadband speeds and pricing and the quality of service provided by both companies. Our remarks will also include a brief overview of the impact of the merger on competition in the state and whether New York would be better served by Comcast or an independent Time Warner Cable.

We will be testifying at the hearing in Buffalo, N.Y., on Monday June 16 starting at 6pm. The public is welcome to attend and will be free to make remarks during the open forum starting at 7:30pm. We urge all New York residents to attend this hearing or others to be held in Albany and New York City. Consumers have significant weight with the New York commissioners and your comments have often derailed the agendas of telecom companies in the state (the Fire Island Verizon Voice Link fiasco, Verizon’s service improvement oversight, stopping Time Warner Cable from cutting off late-paying phone customers on nights and weekends, etc.)

If a sufficient number of residents voice strong concerns about the merger, there is a significant chance New York regulators could place conditions on the merger making it untenable, or could reject it outright, which could torpedo the merger nationwide.

More information from the New York Public Service Commission:

The New York State Public Service Commission will be conducting a series of informational forums and public statement hearings on the petition of Comcast Corporation and Time Warner Cable Inc. allowing Comcast to acquire Time Warner Cable.

The informational forums will consist of presentations by Comcast and other invited parties on the proposed transaction and its likely impact on consumers in New York. The Administrative Law Judge, attending Commissioner and DPS Senior Staff may ask questions of the invited speakers.

Immediately following each informational forum, there will be a public statement hearing at which interested members of the public may offer their views about the Petition in person, before an Administrative Law Judge assigned by the Commission. A verbatim transcript of each hearing will be made for inclusion in the record of the case.

The informational forums and public statement hearings will take place at the following times and places:

Monday, June 16

SUNY Buffalo
Student Union Theater
106 Student Union
Buffalo, NY

We will post driving directions to the forum next week.

Those in or near greater Rochester should contact us and let us know you are attending. We may try to arrange car pooling if there is sufficient interest.

6:00 pm: Informational Forum
7:30 pm: Public Statement Hearing

Wednesday, June 18

SUNY Albany
Performing Arts Center
1400 Washington Avenue
Albany, NY

6:00 pm: Informational Forum
7:30 pm: Public Statement Hearing

Thursday, June 19

NYS DPS Office
90 Church Street
New York, NY

6:00 pm: Informational Forum
7:30 pm: Public Statement Hearing

It is not necessary to be present at the start of the hearing or to make an appointment in advance to speak. Persons interested in speaking will be asked to complete a card requesting time to speak when they arrive at the hearing, and will be called in the order in which the cards are received.

(Cartoon: Heller, Denver Post)

Speakers are not required to provide written copies of their comments.

The public statement hearings will be kept open until everyone wishing to speak has been heard or other reasonable arrangements have been made to include their comments in the record.

Disabled persons requiring special accommodations should contact the Department of Public Service’s Human Resource Management Office at (518) 474-2520 as soon as possible. TDD users may request a sign language interpreter by placing a call through the New York Relay Service at 711 to reach the Department of Public Service’s Human Resource Office at the (518) 474-2520 number. Individuals with difficulty understanding or reading English are encouraged to call the Commission at 1-800-342-3377 for free language assistance services regarding this notice.

Other Ways to Comment

Internet or Mail: Those who cannot attend or prefer not to speak at a public statement hearing may comment electronically to Hon. Kathleen H. Burgess, Secretary, at [email protected] or by mail or delivery to the Secretary at the Public Service Commission, Three Empire State Plaza, Albany, New York 12223-1350. Comments should refer to “Case 14-M-0183, Petition of Comcast Corporation and Time Warner Cable Inc.”

Toll-Free Opinion Line: You may call the Commission’s Opinion Line at 1-800-335-2120. This number is set up to take comments about pending cases from in-state callers, 24 hours a day. Press “1” to leave comments, mentioning the Comcast/Time Warner merger.

All comments provided through these alternative methods should be submitted, or mailed and postmarked, no later than July 31, 2014. All such statements and comments will become part of the record and be reported to the Commission for its consideration.

All submitted comments may be accessed on the Commission’s Web site at www.dps.ny.gov, by searching Case 14-M-0183. Many libraries offer free Internet access.