AT&T was unhappy with the low internet speed score the FCC was about to give the telecom giant, so it made a few phone calls and got the government regulator to effectively rig the results in its favor.

“Regulatory capture” is a term becoming more common in administrations that enable regulators that favor friendly relations with large companies over consumer protection, and under the Trump Administration, a very business-friendly FCC has demonstrated it is prepared to go the distance for some of the country’s largest telecom companies.

Today, the Wall Street Journal reported AT&T successfully got the FCC to omit DSL speed test results from the agency’s annual “Measuring Broadband America” report. Introduced during the Obama Administration, the internet speed analysis was designed to test whether cable and phone companies are being honest about delivering the broadband speed they advertise. Using a small army of test volunteers that host a free speed testing router in their home (full disclosure: Stop the Cap! is a volunteer host), automated testing of broadband performance is done silently by the equipment on an ongoing basis, with results sent to SamKnows, an independent company contracted to manage the data for the FCC’s project.

In 2011, the first full year of the program, results identified an early offender — Cablevision/Optimum, which advertised speed it couldn’t deliver to many of its customers because its network was oversold and congested. Within months, the company invested millions to dramatically expand internet capacity and speeds quickly rose, sometimes beyond the advertised level. In general, fiber and cable internet providers traditionally deliver the fastest and most reliable internet speed. Phone companies selling DSL service usually lag far behind in the results. One of those providers happened to be AT&T.

In the last year, the Journal reports AT&T successfully appealed to the FCC to keep its DSL service’s speed performance out of the report and withheld important information from the FCC required to validate some of the agency’s results.

The newspaper also found multiple potential conflicts of interest in both the program and SamKnows, its contracted partner:

• Providers get the full names of customers using speed test equipment, and some (notably Cablevision/Optimum) regularly give speed test customers white glove treatment, including prioritized service, performance upgrades and extremely fast response times during outages that could affect the provider’s speed test score. Jack Burton, a former Cablevision engineer said “there was an effort to make sure known [users] had up-to-date equipment” like modems and routers. Cablevision also marked as “high priority” the neighborhoods that contained speed-testing users, ensuring that those neighborhoods got upgraded ahead of others, said other former Cablevision engineers close to the effort.
• Providers can tinker with the raw data, including the right to exclude results from speed test volunteers subscribed to an “unpopular” speed tier (usually above 100 Mbps), those using outdated or troublesome equipment, or are signed up to an “obsolete” speed plan, like low-speed internet. Over 25% of speed test results (presumably unfavorable to the provider) were not included in the last annual report because cable and phone companies objected to their inclusion.
• SamKnows sells providers immediate access to speed test data and the other data volunteers measure for a fee, ostensibly to allow providers to identify problems on their networks before they end up published in the FCC’s report. Critics claim this gives providers an incentive to give preferential treatment to customers with speed testing equipment.

Some have claimed internet companies have gained almost total leverage over the FCC speed testing project.

The Journal:

Internet experts and former FCC officials said the setup gives the internet companies enormous leverage. “How can you go to the party who controls the information and say, ‘please give me information that may implicate you?’ ” said Tom Wheeler, a former FCC chairman who stepped down in January 2017. Jim Warner, a retired network engineer who has helped advise the agency on the test for years, told the FCC in 2015 that the rules for providers were too lax. “It’s not much of a code of conduct,” Mr. Warner said.

An FCC spokesman told the Journal the program has a transparent process and that the agency will continue to enable it “to improve, evolve, and provide meaningful results as we move forward.”

The stakes of the FCC’s speed tests are enormous for providers, now more reliant than ever on the highly profitable broadband segment of their businesses. They also allow providers to weaponize  favorable performance results to fight off consumer protection efforts that attempt to hold providers accountable for selling internet speeds undelivered. In some high stakes court cases, the FCC’s speed test reports have been used to defend providers, such as the lawsuit filed by New York’s Attorney General against Charter Communications over the poor performance of Time Warner Cable. The parties eventually settled that case.

In 2018, the key takeaway from the report celebrated by providers in testimony, marketing, and lobbying, was that “for most of the major broadband providers that were tested, measured download speeds were 100% or better of advertised speeds during the peak hours.”

Comcast often refers to the FCC’s results in claims about XFINITY internet service: “Recent testing performed by the FCC confirms that Comcast’s broadband internet access service is one of the fastest, most reliable broadband services in the United States.” But in 2018, Comcast also successfully petitioned to FCC to exclude speed test results from 214 of its testing customers, the highest number surveyed among individual providers. In contrast, Charter got the FCC to ignore results from 148 of its customers, Mediacom asked the FCC to ignore results from 46 of its internet customers.

Among the most remarkable findings uncovered by the Journal was the revelation AT&T successfully got the FCC to exclude all of its DSL customers’ speed test results, claiming that it would not be proper to include data for a service no longer being marketed to customers. AT&T deems its DSL service “obsolete” and no longer worthy of being covered by the FCC. But the company still actively markets DSL to prospective customers. This year, AT&T also announced it was no longer cooperating with SamKnows and its speed test project, claiming AT&T has devised a far more accurate speed testing project itself that it intends to use to self-report customer speed testing data.

Cox also managed to find an innovative way out of its poor score for internet speed consistency, which the FCC initially rated a rock bottom 37% of what Cox advertises. Cox claimed its speed test results were faulty because SamKnows’ tests sent traffic through an overcongested internet link yet to be upgraded. That ‘unfairly lowered Cox’s ratings’ for many of its Arizona customers, the company successfully argued, and the FCC put Cox’s poor speed consistency rating in a fine print footnote, which included both the 37% rating and a predicted/estimated reliability rating of 85%, assuming Cox properly routed its internet traffic.

The FCC report also downplays or doesn’t include data about internet slowdowns on specific websites, like Netflix or YouTube. Complaints about buffering on both popular streaming sites have been regularly cited by angry customers, but the FCC’s annual report signals there is literally nothing wrong with most providers.

Providers still fear their own network slowdowns or problems during known testing periods. The Journal reports many have a solution for that problem as well — temporarily boosting speeds and targeting better performance of popular websites and services during testing periods and returning service to normal after tests are finished.

James Cannon, a longtime cable and telecom engineering executive who left Charter in February admitted that is standard practice at Spectrum.

“I know that goes on,” he told the Journal. “If they have a scheduled test with a government agency, they will be very careful about how that traffic is routed on the network.”

As a result, the FCC’s “independent” annual speed test report is now compromised by large telecom companies, admits Maurice Dean, a telecom and media consultant with 22 years’ experience working on streaming, cable and telecom projects.

“It is problematic,” Dean said. “This attempt to ‘enhance’ performance for these measurements is a well-known practice in the industry,’ and makes the FCC results “almost meaningless for describing actual user experience.”

Tim Wu, a longtime internet advocate, likened the speed test program as more theoretical than actual, suggesting it was like measuring the speed of a car after getting rid of traffic.

Frontier residential customers in Nevada could receive a refund and improved service after a court filing from the Nevada Attorney General’s Bureau of Consumer Protection (BCP) found Frontier’s internet services lacking.

Since 2017, BCP has collected scores of complaints about Frontier’s internet service and its performance, mostly regarding slow service, frequent outages, and ongoing billing problems.

The BCP found Frontier liable under NRS Chapter 598 which forbids providers from misleading consumers about internet speed and service performance in marketing and advertising. An Assurance of Discontinuance filed with the court allowed Frontier to settle while avoiding admitting any wrongdoing and agreeing to correct service deficiencies.

The state found Frontier repeatedly did not disclose limitations of broadband service availability and knowingly marketed its DSL service at speeds the company could not provide customers.

According to the court document:

• Frontier is required to “clearly and conspicuously” disclose in its print and broadcast advertising the actual internet speeds available to customers in terms of minimum and maximum speed.
• Customers that sign up for a high-speed plan that Frontier cannot provide may switch to a lower speed plan or discontinue service incurring no penalties or early cancellation fees.
• Existing customers that do not receive at least 90% of the highest speed their current plan advertises will receive a service credit of 50% of the internet charge for each month Frontier did not provide such speed. Credits will begin in 2020 and end three years after the date the court accepts the Assurance.
• Frontier has also agreed to invest at least $1 million to improve internet service in Elko County.

More Californians are complaining to state officials about their cable television, internet, and phone service than the energy utilities implicated in causing deadly wildfires that left customers without power for days or weeks.

California’s Office of Senate Floor Analyses prepared a report for elected officials contemplating extending deregulation of the state’s top telecommunications companies. It found deregulation has not always benefited California consumers, noting that several companies have been fined for allowing traditional phone service to fall below required service quality standards. As service deteriorates, lawmakers have tied the hands of state officials trying to enforce what service standards still exist. The report found that the telecom industry has been especially good at covering itself through lobbying and litigation to isolate and disempower consumers seeking redress.

“Many companies, including telecommunications providers, include arbitration clauses in their contracts that limit a consumer’s ability to form a class with other consumers to seek remedies for unfair business practices related to contracts,” the report notes. “These clauses frequently limit consumers to a specified arbitration process that limits the types of remedies consumers can obtain for unfair business practices.”

Customers with unreliable phone service pursuing complaints on the federal level with the Federal Communications Commission have also been dealt a blow by the Trump Administration and its Republican majority control of the FCC.

“It is unclear what kind of remedies consumers can obtain since the FCC has adopted an order limiting its own ability to establish requirements for these services,” the report found.

Deregulation has not stopped Californians from trying to get help from the California Public Utility Commission (CPUC), however. The CPUC’s Customer Affairs Branch recorded 1,087 complaints about the state’s phone and cable companies in January 2019, compared with 677 complaints against the state’s energy utilities and 53 lodged against water utilities.

The CPUC’s Customer Affairs Branch reported communications-related complaints were significantly higher than other utilities. (Image: California Office of Senate Floor Analyses)

“Despite the occurrence of wildfires in which utility infrastructure was implicated, complaints regarding energy utilities remained largely consistent between November 2018 and January 2019,” the report found. “The data indicates that the communications sector generates a greater number of complaints to the CPUC than other utility sectors on average, and a much greater percentage of those complaints are for customer issues over which the CPUC has no regulatory jurisdiction.”

Earlier this year, California’s largest investor-owned utility, Pacific Gas & Electric (PG&E), filed for bankruptcy protection after estimating it was liable for more than $30 billion in damages from recent wildfires. An investigation found equipment owned by PG&E was responsible for starting the worst wildfire in California history. The November 2018 Camp Fire killed 85 people and destroyed the town of Paradise. Yet the Customer Affairs Branch received fewer complaints about PG&E than it received regarding AT&T, Charter Spectrum, Frontier, Cox, and Comcast XFINITY.

Unintended consequences of deregulation have also caused several high profile scandals among telecom companies in the state. Some of the worst offenses were committed by cable and phone companies that further traumatized victims of catastrophic wildfires. An effort to implement new consumer protections for fire victims forced to relocate met fierce resistance from cable and telephone industry lobbyists. Some of those same telecom companies continued to bill wildfire victims for months for service at addresses that no longer existed. AT&T even billed customers that died in the fires.

A recent San Francisco Superior Court decision (Gruber v. Yelp) also found another consequence of deregulation. A judge ruled The California Invasion of Privacy Act (CIPA) does not apply to calls made or received on “digital” phone lines better known as Voice over IP (VoIP). The judge found that since the CPUC does not regulate VoIP calls, and such calls are not legally defined as a traditional phone call, CIPA cannot apply.

More than six months after devastating wildfires swept across the North Bay in 2017, AT&T was still billing customers that died in that fire. KGO-TV reports. (3:31)

After promising to never again erroneously bill wildfire victims, AT&T did it again to those traumatized by the 2018 Camp Fire that killed 85 people and wiped the town of Paradise off the map. KOVR in Sacramento reports on one family pleading with AT&T to stop billing them for landline service at an address that no longer exists. (2:15)

Some Frontier Communications customers in Rochester were left without service early today in a “widespread” outage that impacted local governments, commercial customers, and medical care facilities. To prevent disruptions, working with Operant Billing can help keep your billing and financial operations running smoothly.

Medical facilities are relying on backup plans to maintain communications after service failed this morning, just days after the New York Public Service Commission warned Frontier Communications it must improve service after receiving a growing number of service complaints impacting service across the state.

The outage is just the latest in a growing series of outages that have left some customers without service for as long as five weeks. Last week, state regulators released results of their 2018 survey on the service quality of telephone companies serving New York and found service from four Frontier-owned affiliates lacking:

• Citizens Telecommunications Company of New York, Inc. (Citizens)
• Frontier Telephone of Rochester, Inc. (Frontier Rochester)
• Frontier Communications of New York, Inc. (Frontier New York)
• Frontier Communications of Ausable Valley, Inc. (Ausable Valley)

“The rate of consumer complaints received by the Department of Public Service (PSC Complaints) has significantly increased in the last several years for these companies,” the PSC report concludes. “In addition, a review of company-provided initial data shows poor performance regarding repair duration for customers who lose service. Further, Staff has received an increasing number of complaints from local, county, and State government representatives and officials from first-responder organizations regarding network reliability and timeliness of repairs in the service areas of these companies.”

Frontier was a clear standout among problematic service providers serving New York. The company currently serves 221,000 access lines from 211 central offices and is the largest independent telephone company in New York outside of Verizon. Frontier is the incumbent landline provider for 7.9% of the state’s total access lines, with its largest service area centered on Rochester and the 585 area code. The PSC notes Frontier has been rapidly losing customers, with 30,000 access lines disconnected in 2018 alone.

But not every Frontier division in New York has operated below the PSC’s standards. Former Rochester Telephone-owned entities including Frontier Ogden Telephone Company and Frontier Communications of Seneca-Gorham, as well as Frontier Communications of Sylvan Lake experienced no significant outages or complaints in 2018. Frontier often allows its divisions to be managed somewhat autonomously, with local managers keeping watch over operations in their area. Frontier offers little residential fiber optic service in its New York markets, except in selected new housing developments and in areas where the existing copper network has deteriorated or been damaged beyond practical repair. Most customers are offered copper-based DSL service over telephone lines installed decades ago.

Frontier’s ongoing and increasing financial problems may be responsible for the spike in service complaints and lengthening repair times. Employees have repeatedly told Stop the Cap! resources to deal with service issues are increasingly scarce and cost management is among the highest priorities inside the company. Frontier’s service repairs often take days, if not weeks. Company officials have told employees that since most people have cell phones, landline repairs are no longer as critical as they once were years ago. But spotty internet service can significantly damage local businesses, and outages are becoming more frequent and taking longer to repair.

“The PSC Complaint rate has significantly increased in the last several years for these Frontier companies,” the PSC found. “In addition, Staff has responded to a significant number of network reliability complaints and inquiries from local, county, and State government representatives, including emergency response entities. These complaints include long repair durations and repeated out-of-service conditions, as well as internet access and speed issues.”

Stop the Cap! has learned the New York State Attorney General’s office has also opened an informal inquiry into the increasing number of internet service complaints filed with the AG’s office.

To learn why Frontier is experiencing an increasing number of problems, the PSC has requested more granular trouble reports and will interview Frontier’s local supervisors and technicians to get a candid assessment of Frontier’s wireline facilities and what exactly is contributing to a deterioration of service. If Frontier is unwilling or unable to improve service, the PSC has warned it may take formal action against the company.

WHAM-TV in Rochester reports some Frontier customers in Mount Morris, N.Y., south of Rochester, have been without internet service for five weeks, causing frustration. (2:05)

WROC-TV in Rochester reports on another multi-day Frontier service outage, this one affecting residential and business customers in the Sea Breeze and Point Pleasant areas along Lake Ontario. (1:58)

Frontier Communications customers in Exeter, Calif. experienced intermittent phone and internet service last week after the phone company’s network deteriorated to the point of failure on Friday, Aug. 2, when the entire Exeter telephone exchange was apparently affected.

For most of last week, customers reported periodic outages and callers could not reach numbers in the 592 exchange. Some businesses reported calls were met with recordings that their numbers were permanently disconnected.

Frontier has said little about the outage, impacting the Tulare County community of 10,000, located north of Bakersfield. But area customers and businesses had a lot to say.

The local Bank of America branch closed for several days, unable to process banking or ATM transactions because of the outage. That forced residents to drive to Visalia or Lindsay to find ATMs that did not display “Due to circumstances beyond our control, we are temporarily closed. We apologize for the inconvenience.”

The Frontier outage hit local businesses especially hard, because callers were given the impression area businesses had permanently closed. Those still open often could not process credit card transactions, turning away paying customers.

Exeter, Calif.

Paula Marvin, owner of Rosemary and Thyme in Exeter, told the Sun-Gazette the interruption affected her business.

“I remember being able to call out at around 10 a.m. but not in the afternoon,” Marvin said. “And even then I’m not sure who has what service.”

Callers in the 592 exchange could occasionally place calls to other Frontier customers in the same exchange, but not to other exchanges or non-Frontier customers. Incoming calls were usually not completed.

“When you call out, it gives you a busy signal, and when people call in it says the number has been disconnected or is no longer in service,” Marvin said.

Sherri Forcum, owner of Whistle Stop Diner, told the newspaper she lost about half of her business for the day on Aug. 2 because she was unable to process credit cards for walk-in customers and couldn’t receive phone calls for takeout orders. Callers were told the number was permanently disconnected. Some loyal customers drove to the diner to discover it was still open for business, and that was Forcum’s first realization the phone line was not working properly. Forcum intends to switch to Charter Spectrum phone service.

Customers calling Frontier to complain about the outage were initially told there was no outage and no problem with their phone service. The Exeter Chamber of Commerce begged to differ, telling the newspaper it was taking multiple complaints from Exeter businesses, particularly last Friday. Chamber representative Sarah Tyler experienced the outage herself.

“At the Mural Gallery, we’re able to pick up and get a dial tone but the moment you called it told you the number was disconnected,” Tyler said. “A lot of businesses and a lot of residents were really frustrated.”

The outage mysteriously ended on Monday. The newspaper could not get Frontier to comment on the outage at press time.