Neville Chamberlain, British Prime Minister, 1937-1940

“If you don’t succeed, try, try, try again.” — Neville Chamberlain, 1938

Another day, another damage control effort from FCC chairman Thomas Wheeler, still reeling from days of criticism in response to his plan to revisit the issue of Net Neutrality next month.

In a lengthy blog post, Wheeler still believes it’s all a big misunderstanding:

“Some recent commentary has had a misinformed interpretation of the Open Internet Notice of Proposed Rulemaking (NPRM) currently before the Commission,” writes Wheeler. “There are two things that are important to understand.  First, this is not a final decision by the Commission but rather a formal request for input on a proposal as well as a set of related questions.  Second, as the Notice makes clear, all options for protecting and promoting an Open Internet are on the table.”

Except they are not.

Wheeler channels former British Prime Minister Neville Chamberlain by declaring a deep desire for “peace in our time” with half-measures instead of direct confrontation with Big Telecom interests.

“I believe this process will put us on track to have tough, enforceable Open Internet rules on the books in an expeditious manner, ending a decade of uncertainty and litigation,” Wheeler declares. “The idea of Net Neutrality (or the Open Internet) has been discussed for a decade with no lasting results. Today Internet Openness is being decided on an ad hoc basis by big companies. Further delay will only exacerbate this problem.”

The troubles with Net Neutrality are a problem of the agency’s own making and its leadership’s utter failure to show courage in the face of Verizon, Comcast, and AT&T’s power and influence. Former FCC chairman Michael Powell (now top cable industry lobbyist) created the problem when he invented a classification for broadband as an “information service” out of thin air without any clear authority. At the heart of Powell’s “policy statement” were four basic Internet principles:

1. Consumers are entitled to access the lawful Internet content of their choice.
2. Consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement.
3. Consumers are entitled to connect their choice of legal devices that do not harm the network.
4. Consumers are entitled to competition among network providers, application and service providers, and content providers.

Powell’s principles stood as long as the FCC’s policies moved in lock-step with the telecommunications industry. When the FCC strayed from industry talking points and started showing some enforcement teeth, some of the same telecom companies that send the FCC cupcakes took them to court.

Former FCC chairman Julius Genachowski who insisted the FCC had authority over broadband because he said so believed the best way forward was to involve the industry in the development of Net Neutrality policies they could live with. After multiple private phone conversations and closed-door meetings, companies like Verizon helped write the guidelines for protecting the Open Internet and then, after they were implemented, sued the FCC in federal court.

“We are deeply concerned by the FCC’s assertion of broad authority for sweeping new regulation of broadband networks and the Internet itself,” said Michael E. Glover, Verizon’s senior vice president and deputy general counsel. “We believe this assertion of authority goes well beyond any authority provided by Congress, and creates uncertainty for the communications industry, innovators, investors and consumers.”

That’s gratitude for you, and it wasn’t the first time.

Phillip “Your Wallet = Czechoslovakia” Dampier

In 2010, an exasperated D.C. Circuit Court of Appeals didn’t exactly encounter Perry Mason when the FCC legal team showed up to defend its order demanding Comcast cease throttling broadband traffic. When the FCC threatened to fine Comcast, the cable company sued claiming the FCC had no authority over how they run their broadband business. Commission lawyer Austin C. Schlick delivered a less-than-robust defense of the FCC’s scheme.

“If I’m going to lose I would like to lose more narrowly,” Schlick confided. “But above all, we want guidance from this Court so that when we do this rule-making, if we decide rules are appropriate we’d like to know what we need to do to establish jurisdiction.”

Justice A. Raymond Randolph had none of it.

“We don’t give guidance,” Randolph grumbled, “we decide cases.” The FCC lost.

Legal experts already knew the FCC was on thin ice.  First, the Powell’s statement was never codified by the Commission’s own rulemaking procedure.  Second, the Commission framed the broadband policy as a set of “guidelines,” a term considered legally vague.  Third, the FCC relied on the concept of “ancillary” authority — borrowing regulatory authority from so-called “policy statements” coming from Congress, to claim jurisdiction.

DC Circuit Court

So it should come as no surprise that the same framework declared invalid when the FCC tried to spank Comcast was just as useless in shoring up the FCC’s authority to enforce Net Neutrality.

U.S. Circuit Judge David Tatel, writing for a three-judge panel, said that while the FCC has the power to regulate Verizon and other broadband companies, it chose the wrong legal framework for its open-Internet regulations.

“Given that the commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the commission from nonetheless regulating them as such,” Tatel wrote.

Judge Tatel could not have been more clear. In his second ruling, he noted the FCC’s ongoing resistance to reclassify broadband service under the well-grounded definition of a “telecommunications service” is at the heart of the problem.

But Wheeler, like his immediate predecessor Julias Genachowski, still stubbornly grips Powell’s flawed framework like a life-preserver off the Titanic:

The FCC promises Verizon they won’t have to sue again.

I am concerned that acting in a manner that ignores the Verizon court’s guidance, or opening an entirely new approach, invites delay that could tack on multiple more years before there are Open Internet rules in place.  We are asking for comment on a proposed a course of action that could result in an enforceable rule rather than continuing the debate over our legal authority that has so far produced nothing of permanence for the Internet.

I do not believe we should leave the market unprotected for multiple more years while lawyers for the biggest corporate players tie the FCC’s protections up in court.  Notwithstanding this, all regulatory options remain on the table. If the proposal before us now turns out to be insufficient or if we observe anyone taking advantage of the rule, I won’t hesitate to use Title II. However, unlike with Title II, we can use the court’s roadmap to implement Open Internet regulation now rather than endure additional years of litigation and delay.

Here is some news Wheeler can use: No matter what policies the FCC enacts or how, if they run contrary to the interests of Big Telecom companies, they will sue anyway. Net Neutrality appeasement by collaboration did not stop Verizon from promptly suing the FCC to overturn in court the rules the company helped write.

Wheeler needs to deal his reclassification card or get out of the game. It is increasingly clear it is the only legal basis under which the Court of Appeals will readily accept the FCC’s authority to oversee broadband.

Wheeler has his own set of Powell-like principles – the Four No-No’s of the Net:

Let me be clear, however, as to what I believe is not “commercially reasonable” on the Internet:

• Something that harms consumers is not commercially reasonable. For instance, degrading service in order to create a new “fast lane” would be shut down.

• Something that harms competition is not commercially reasonable. For instance, degrading overall service so as to force consumers and content companies to a higher priced tier would be shut down.

• Providing exclusive, prioritized service to an affiliate is not commercially reasonable. For instance, a broadband provider that also owns a sports network should not be able to give a commercial advantage to that network over another competitive sports network wishing to reach viewers over the Internet.

• Something that curbs the free exercise of speech and civic engagement is not commercially reasonable. For instance, if the creators of new Internet content or services had to seek permission from ISPs or pay special fees to be seen online such action should be shut down.

But there are plenty of loopholes in Wheeler’s proposals. First, “degrading service” goes undefined. As we’ve seen recently, there is a difference between purposely throttling a broadband connection and not maintaining and upgrading it to handle growing traffic. Second, Wheeler’s idea of what is “commercially reasonable” is not defined either. A provider could make all of its owned sports networks exempt from usage caps. That is neither “exclusive” or “prioritized.” It just doesn’t count against your usage allowance. Third, you might have open access to all of this content but won’t want it because your provider’s preferred partners get faster and more responsive service and less waiting for pages or videos to load.

Wheeler’s apparent naiveté about this industry and its behavior is beyond belief considering the decades he worked on behalf of the cable and wireless industry. Netflix foreshadows an Internet future without robust Net Neutrality. Verizon, Comcast and others ignore complaints about the degrading performance of Netflix, refusing to upgrade their connections of behalf of paying customers, until Netflix also agrees to pay them. When Netflix drops a check in the mail, the problem disappears. It doesn’t seem to matter that customers paying a very high price for Internet service cannot get the service they deserve unless someone else also pays.

If we can see this problem, it is extraordinarily curious why Wheeler cannot (or will not). Wheeler’s tough talk is cheap, but American broadband is not. Without direct action that reclassifies broadband as a telecommunications service, nothing Wheeler proposes or gets enacted is likely to survive the next inevitable court challenge.

While AT&T trumpets vague plans to upgrade up to 100 cities with gigabit fiber to the home service, some AT&T GigaPower U-verse customers in Austin wish they could just consistently get the 300Mbps service they were promised.

More than a few customers are unhappy with the service they are getting and have been vocal on an AT&T forum with complaints about service interruptions and speed issues.

Among the complaints:

Unresponsive Internet

A common complaint for U-verse GigaPower customers is a suddenly unresponsive Internet.

“Since upgrading to GigaPower often times my browser (same issue with Firefox, Safari, Chrome) will not always load or display web sites. Same thing happens with Tuba and/or Youtube,” writes bcslas. “Often it will fail to load and sometimes I see timeout errors, yet at other times the site loads fine. […] Usually a refresh or 30 second wait to refresh will fix the issue – but it is constant.”

“I upgraded to GigaPower last December and since then, the service started getting disconnected multiple times per week,” wrote ybasha. “Sometimes it lasts a few minutes and sometimes longer. When that happens, I lose Internet and TV service. I called technical support multiple times. They sent technicians twice. One of them swapped the modem, but I still have the problem.”

“When I do a Google search from Chrome, it hangs there until it eventually times out and then I have to reload the page, after which the search results appear,” writes bustedmagnet. “Another example is in Gmail, sometimes the initial page is very slow to load, but it hangs forever when trying to open individual emails. Again, multiple page refreshes seem to fix this.”

It turns out that IPV6, enabled by default, is unreliable when using AT&T GigaPower. Customers have usually found relief downgrading to IPV4-only support or switching to Google’s IPV6 DNS servers:

• 2001:4860:4860::8888
• 2001:4860:4860::8844

Slow Speeds

AT&T GigaPower is supposed to offer 300/300Mbps service today with an upgrade to gigabit Internet forthcoming later this year. But not every customer comes close to getting those speeds. GigaOM writer Stacey Higginbotham found some customers cannot reliably get more than 75Mbps:

Yesterday I was at my brother in-law’s house where he is a GigaPower subscriber, his computer was registering speeds of 70 Mbps down and 50 Mbps up using Ookla on a wired connection. That’s fast, but not 300 Mbps fast and certainly not a gig. My brother and sister-in-law are not speed freaks like myself, but they were disappointed with the GigaPower product.

To me, what was most troubling is that they couldn’t tell me if they had signed up for AT&T’s service plan that offers them a lower price on internet service if the customer lets AT&T use your surfing habits to offer ads. They signed up for a bundle, they said, that was cheaper than their previous service.

“Upload speeds are consistently slower than download speeds,” complained egardiner. “Using att.com/speedtest, I can consistently achieve 320Mbps down, but typically never more than ~180Mbps up. The CrashPlan backup service is glacially slow, never achieving more than 3kbps when sending data to CrashPlan’s cloud servers.  CrashPlan’s techs have suggested that there are no issues on my client PC side nor on their server’s side, and they’ve asked if U-verse GigaPower is throttling backup traffic.”

Broadband Reports’ readers report Usenet newsgroup downloads appear to be heavily throttled over the GigaPower fiber network as well, with speeds dropping well below 100Mbps.

It turns out GigaPower speeds won’t help you with a good Netflix viewing experience either.

“I signed up for the U-Verse GigaPower service and the overall speeds seem to be faster,” writes mstang1988. “The bad, some of regularly used services are not performing. For example, Netflix. On Grande [a competing provider] I was always running at HD. With U-verse I’m seeming giant blocks of blur. I’m fixing to cancel.”

Kim R. in Cedar Falls, Tex. isn’t happy either:

AT&T GigaPower was good for the first 20-30 days, then they made a change and my upload speed is 35-78 on average with a lot of latency and my VoIP phones cannot send or receive calls. Multiple techs were dispatched on Friday and they were at my home for 7+ hours. They eliminated my home as being the source of the issue and other friends in the neighborhood are having the same issues.

We have been in this mode for 4 days now and I have spend most of today working with tech support with no luck. Customer service was no help either when I asked them to suspend billing until they got it working again, of course there answer was “we can’t do that”.

I will loose another day of service when the tech(s) come out again tomorrow. Beware of AT&T’s GigaPower, it’s a myth so far and their techs ride on unicorns and most have no idea about any networking.

A denial of service attack often directs compromised computers to join in the attack, bringing an enormous amount of simultaneous traffic to a single, targeted user. The result is usually very slow or no Internet service. (Image courtesy: Cisco)

For nearly a month, Verizon FiOS customers in Westborough and Northborough, Mass. have experienced frequent slowdowns and outages of their Internet and telephone service that Verizon now admits have been traced to a denial-of-service attack on a single residential customer in Westborough.

“Someone deliberately flooded that customer with an overwhelming amount of traffic that rendered their Internet service inoperable,” Verizon spokesman Philip G. Santoro told The Telegram. “When that happened, it caused Internet service to periodically slow down for other customers in Westborough,” he wrote. “We are working to restore service to normal as soon as possible. DOS attacks are all too common today among customers of all Internet providers. It’s important to remind Internet users to keep their firewalls operating and to keep their security software current.”

When the newspaper first reached Santoro for comment, he claimed there wwere no widespread outages reported, but angry customers disagreed on the community’s Facebook page and six filed complaints with the state’s Office of Consumer Affairs and Business Regulation.

The outages have been a problem as far back as Feb. 26, growing more frequent in number since March 3. Business customers were also affected.

“It happened around 3 o’clock, every day,” said Allen Falcon, chief executive officer for Cumulus Global, a cloud computing company in Westborough. “Sometimes it was a few minutes, sometimes 45 minutes to an hour.” A few times, the interruptions occurred in the morning, just after 9 a.m., he said.

When the attacks began, they not only affected the company’s Internet connection, but also its business phone service.

Verizon’s first solution was to replace FiOS routers, which proved ineffective.

Customer Steve Winer from Westborough told the newspaper sending Verizon crews out with new equipment was a waste of time and money.

“I am just wondering how much time and money was wasted on this,” he wrote the newspaper in an email. “I know I spent at least a couple of hours on the phone, and others shared similar stories. But, if you add up all the shipped routers and unnecessary service calls, along with the time both of us customers and (Verizon) personnel, I am sure it really adds up, and could have been avoided if someone had simply put two and two together and posted a chronic outage which began in February.”

Last week, Verizon finally identified the specific customer targeted by the cyber-attack and terminated his FiOS account, which also put an end to the service-disrupting attacks.

Some customers are wondering whether Verizon has an effective plan to deal with future cyber attacks.

“It seems FiOS is very vulnerable to these attacks, which not only affects the target’s service, but that of everyone else in town,” wrote Stop the Cap! reader Steve Read, a Northborough resident. “They need a way to quickly isolate these kinds of attacks and keep them from affecting other customers’ service.”

Customers affected by the outages can contact Verizon FiOS customer service and request credit for the outages.

Good luck reading the fine print.

A Texas Time Warner Cable customer has discovered the fine art of cable company fine print, and it only cost her the Samsung Galaxy Note tablet promised in return for upgrading her cable package.

Sherry Buffington of Farmers Branch learned first hand that 1/16th of an inch print has but one purpose — to take away the promised tablet worth $399.

Time Warner Cable ran the tablet promotion nationwide over the holidays. Buffington wanted to know she would qualify before upgrading her service, so she called Time Warner Cable and got confirmation. She upgraded her service on the spot.

Weeks later, no tablet and no answers from Time Warner Cable. It took the Dallas Morning News’ Watchdog reporter to finally pry some answers out of the cable company.

Time Warner Cable’s position was finally made clear: No tablet for Ms. Buffington; she did not qualify for the offer because she didn’t pay attention to the fine print. It turns out customers have to switch to a specific bundled package to qualify for the promotion. Customers who simply upgraded service more often than not did not qualify for the promised tablet.

But Buffington still got something after her ordeal. It turns out Time Warner likes to keep recordings of customer calls indefinitely. A supervisor was able to pull the months-old recording of the call between Buffington and the customer service representative who promised she qualified for the tablet even though Time Warner now insists she does not. The cable company offered Buffington a $300 credit on her next bill to set things right.

Consumer advocates warn customers to take special care reviewing the fine print attached to most promotional offers and follow instructions precisely to qualify. But Watchdog Dave Lieber said Time Warner really went beyond the pale with the “disgustingly small” fine print he found completely unreadable.

Lieber’s inability to read the terms and conditions did not faze Melissa C. Sorola, TWC’s director of public relations. She reminded him the requirements are “stated three times in the documents.”

“Yes, that’s true,” wrote Lieber. “But it was in 1/16 of an inch everywhere. I don’t find that acceptable. Do you?”

Texas’ competing electric companies are held to a different standard. They have to produce their fine print in no smaller than 10-point type in paragraphs that do not exceed 250 words. Time Warner’s is half that size.

Customers rejected for rebates or promotions should file complaints with both the Better Business Bureau and their state’s Attorney General. This usually triggers a contact from an executive customer service agent to settle the matter. If you made a good faith effort to comply with the rebate, you should be able to receive a service credit equal to the amount or value of the rebate. Do not insist on receiving the promotional item or gift card, which is usually handled by a third-party fulfillment company.

Charter Communications’ march to all-digital service is one big Excedrin headache for many of the communities enduring the cable company’s conversion.

Charter is embarked on a campaign to end analog cable television service, freeing up bandwidth to offer more HD channels and increase broadband speeds. But the switch to digital has been accompanied by frequent service disruptions and outages.

In Texas, customers complain their digital channels are often frozen or pixelated. In Casper, Wyo., where Charter acquired an older cable system from Cablevision that was originally built by Bresnan Communications, customers’ complaints range from inconsistent service and slow response times to loss of sound and frozen video during airing of City Council meetings.

But some of the loudest concerns about Charter originate from the Outer Banks of North Carolina where customers are finding the switch to digital can be very costly.

Tourism is a major part of the local economy and the Outer Banks are filled with seasonal homes, rental condos and hotels. Many property owners maintain seasonal accounts with Charter Cable, only active during the tourist season. Some hotel owners notified about Charter’s plans to transition towards digital service worked with the cable company to buy televisions that would not need additional equipment to work after the switch. With the cable company’s recommendations, some hotel chains purchased dozens or even hundreds of digital-ready television sets installed in rooms that were ready for the switch.

Only recently, Charter notified customers they also planned to encrypt the basic lineup, rendering the digital televisions useless without the additional cost and inconvenience of installing Charter’s digital set-top boxes. Although Charter will temporarily offer customers free rental of the boxes, after the offer expires, customers will pay Charter $6.99 a month for each box. For some upper end condos, the cost of renting multiple boxes will exceed the cost of the cable TV package.

The Outer Banks Voice details several other customer complaints:

With the older analog systems, many owners flat mounted their televisions to walls and had the cable wired directly into the television, out of sight. With boxes now required, rental homeowners will need to figure out where to place the box and how to run the cables to the set.

In addition, rental companies and homeowners will need to keep track of numerous remotes and keeping those remotes supplied with working batteries.

[…] Thus far, Charter is not offering boxes for sale, so owners cannot absorb the cost over the long-run use of the box, and there appears to be some confusion on whether homes with five or more televisions will require a “Pro Installation” at extra cost to ensure signal strength is sufficient.

If such an installation is required, owners and rental management companies will also be required to arrange access for Charter installers.

Rental condos are also faced with yet another logistic hurdle.

Many condos include cable television fees in their monthly association dues, and the cable contracts for all units are in the name of the condo association.

To obtain boxes, condo owners are now going to be required to set up their own individual accounts, often from an out-of-state location, and then determine how to get the boxes installed.

Signal strength is also a concern in condo projects. Even with analog signals, the multiple connections in one area make reception fuzzy and of low quality.

A small sample of complaints found all over Charter’s social media pages.

Charter Communications shared their side of the story about the digital conversion:

Outer Banks, N.C.

Charter customers are notified by newspaper, direct mail, bill messages, phone calls from Charter representatives, and Charter commercial spots beginning at least 30 days prior to their cutover. Charter is making it easy for customers to receive one or more digital boxes at no cost for one, two or five years, depending on the customer’s programming package and other qualifying factors.

Customers that need less than four boxes can have them shipped directly to their home by calling 1-888-GET-CHARTER or pick them up at a Charter Store.

Customers that live out of town, that own vacation homes, can authorize personnel with their property management company or other specified individuals to pick up their boxes. Customers must first authorize those individuals and add them to their account by calling 1-888-GET-CHARTER. The customer account owner can rescind authorization of individuals at any time.

Property Management companies or authorized individuals can then obtain up to five set-top boxes at a Charter Store.

Customers needing more than five boxes should contact Charter 1-888-GET-CHARTER. A professional technician will be scheduled to assist customers with the installation.

Charter Stores are currently operating with expanded hours to accommodate customers during this all-digital project. Charter Store hours will also be expanded in April where peak volume is expected.

Commercial properties have several options available and can work with their Charter Business account representative on the best solution for their business.

Due to advances in technology, solutions available may involve the need for additional equipment in order to provide the best possible cable, Internet and voice products for our customers.