A telecom industry front group acknowledged today American broadband in the last decade has not won any awards for speed or price, but if you just give the industry ten more years of deregulation, there will be more competition than ever to change that.

For the Internet Innovation Alliance’s Bruce Mehlman, the cable and phone companies have done a fine job bringing broadband to Americans, especially considering the industry is only ten years old.  If you leave things the way they are today, the next decade will bring even more competition from phone and cable companies, he promises.

But consumer groups wonder exactly how a duopoly will ever deliver world class service in the next ten years when it has spent the last ten hiking prices on slow speed broadband and now wants to limit or throttle usage.

This afternoon, National Public Radio’s All Things Considered tried to referee the broadband debate, pondering whether America is a world leader in broadband or has just fallen behind Estonia.  Reporter Joel Rose was perplexed to find two widely diverging attitudes about broadband, each with their set of numbers to prove their case.

On one side, consumers and public interest groups like Consumers Union and Free Press who believe deregulation and industry consolidation has created a stagnant broadband duopoly that only innovates how it can get away with charging even higher prices.

On the other, the phone and cable companies, the groups they finance, and their friends on Capitol Hill who believe there isn’t a broadband problem in the United States to begin with and government oversight would ruin a good thing.

Compared with other nations, the United States has continued to see its standing fall in broadband rankings measuring speed, price, adoption rates, and quality.  When East European countries and former Soviet Republics now routinely deliver better broadband service than America’s cable and telephone companies, that story writes itself. Embarrassed industry defenders prefer to confine discussion of America’s broadband success story inside the U.S. borders, discounting comparisons with other countries around the world.

For Rep. Joe “I Apologize to BP” Barton (R-Texas), it’s even more simple than that.  Even questioning the free market is downright silly.

“As everybody knows, if it’s not broke, don’t fix it,” Barton said at a March congressional hearing to discuss broadband matters. “And y’all are trying to fix something that in most cases isn’t broke. Ninety-five percent of America has broadband.”

Industry-financed astroturf and sock puppet groups readily agree, and dismiss industry critics.

Bruce Mehlman, co-chair of the industry-supported Internet Innovation Alliance, which opposes more regulation, acknowledges that the story of broadband in the U.S. is a classic glass-half-full, glass-half-empty predicament. Still, he says he thinks broadband adoption in the U.S. is going pretty well considering broadband has only been available for 10 years.

“For the optimist, you’d say within a decade we’ve seen greater broadband deployment than you saw for cell phones, than for cable TV, than for personal computers,” Mehlman says. “It’s one of the great technology success stories in history.”

Mehlman says Americans don’t need more government intervention to make broadband faster and cheaper. “We haven’t yet and that’s in the first decade,” he says. “In the second decade, the marketplace is only going to be that much more competitive.”

The problems go further than that, however.

Derek Turner, research director for the public interest group Free Press, told NPR broadband rankings tell an important story. “For the providers to try to say that there’s no problem, it’s merely just a smoke screen,” he says.

Providers would prefer to measure their performance against each other instead of comparing themselves with foreign providers now routinely providing better, faster, and cheaper service than what American consumers can find.  They have to, if only because of those pesky international rankings illustrating a wired United States in decline.

Joel Kelsey at Consumers Union tells NPR there is an even bigger question here — what role broadband plays in our lives.

Because 96 percent of Americans can only get broadband from a duopoly — the phone or cable company, the only people truly singing the praises of today’s broadband marketplace are the providers themselves and their shareholders.  Consumers see a bigger problem — high prices, and particularly for rural consumers, slow speeds.

“If you talk to [the] industry,” Kelsey says, “they think of broadband as a private commercial service akin to pay TV or cable TV.”

On the other hand, Kelsey says, “There’s a lot of folks who think it is an essential input into this nation’s economy — an essential infrastructure question.”

National Public Radio reporter Joel Rose dived into the battle over broadband numbers between consumer groups and industry representatives. Is America’s broadband glass half-full or half-empty? (June 28, 2010) (4 minutes)
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A California attorney has filed a nationwide class action lawsuit against AT&T for fraud and misrepresentation over claims the company baited consumers to purchase Apple iPads with unlimited access and then subjected them to Internet Overcharging schemes after AT&T ended its unlimited data plan.

Lieff Cabraser Heimann & Bernstein, LLP claims AT&T knew it was going to break its promise to thousands of customers who were told they could switch between unlimited and limited data plans as their needs changed.  On June 7th, AT&T ended its unlimited data plan but grandfathered existing contract customers, permitting them to retain the plan indefinitely.  But if a customer changed to a limited usage plan or discontinued service, they lose the chance to get the unlimited plan back.

Apple and AT&T announced this policy change with less than one week’s notice to their customers and only about a month after Apple and AT&T began selling 3G-enabled iPads.  Apple and AT&T had promised consumers flexibility with their data plans, allowing them the ability switch back and forth between the limited data plan, the unlimited data plan, and no data plan.

No more.

“The availability of an unlimited data plan was a key reason why consumers paid the extra $130 charge to access the 3-G network, and their ability to switch in and out of the unlimited data plan was also an important consideration in the decision to purchase an iPad,” stated Lieff Cabraser attorney Michael W. Sobol. “The complaint alleges that Apple and AT&T should have known at the time they were promoting the availability of unlimited data plans, they were not going to keep that promise.”

“I originally purchased a standard iPad. Three weeks later, I returned it to the Apple store, paying an additional $130 plus sales tax to upgrade to an iPad with 3G capability. I thought the iPad 3G was worth the additional money because, with the unlimited data plan, I could work outside my office or home and access all the data I needed for a fixed, monthly price,” commented plaintiff Adam Weisblatt of Fulton, New York. “But I also knew that for several months each year, with my schedule, a lesser expensive, limited data plan was sufficient. I would have never purchased a 3G-capable iPad if I knew Apple and AT&T were planning on suddenly taking away from me the freedom to opt in and out of an unlimited data plan at my choice.”

The proposed class plaintiffs seek to represent a nationwide class consisting of all individuals and entities within the United States who purchased or ordered an Apple iPad 3G on or before June 6, 2010.

Consumers wishing to join the suit can contact the law firm for additional details.  There are no details on exactly what the attorneys will be seeking from AT&T.

Class action lawsuits have often delivered far more in benefits and compensation to the law firm that filed the lawsuit, with consumers usually left with discount coupons or less than $10 in compensation.  In this case, demanding AT&T deliver on its marketing promises or permitting customers to return their iPads for full refunds would seem appropriate.  Thanks to Stop the Cap! reader Marcus for the news tip.

With the League of Municipalities essentially cutting a deal to sit on a municipal broadband study group that includes no actual consumers, voting for big telecom’s favorite bill of the year became a no-brainer.  It was a real shame to see the voting results on S.1209, despite pleas from consumers and some of North Carolina’s most rural representatives demanding to keep the municipal broadband option open.  They understand reality — while a handful of politicians in Raleigh cash big corporate contribution checks from the cable and phone companies, those out in the rural real world live with the results — no broadband.

We don’t need a one year moratorium on municipal broadband.  If the state government wants to study the issue, so be it, but a one year suspension on municipal broadband is a stall technique that big telecom providers are celebrating across the state.

Residents across North Carolina owe Sen. Joe Sam Queen a special thank-you for leading the charge for better broadband for rural residents.  He offered an amendment that would let the study go forward, but stripped out the anti-consumer moratorium.

Mark Binker of the Greensboro News & Record explained what happened next:

During the debate Monday night, Sen. Joe Sam Queen, a Waynesville Democrat, offered an amendment to allow the study to go forward but remove the moratorium.

Sen. David Hoyle, a Dallas Democrat and the Rules Committee chairman, offered a substitute amendment that essentially altered the bill’s language a bit but kept the moratorium around. Hoyle is one of the bill’s primary architects.

“We do not need a moratorium on the expansion of broadband across North Carolina,” Queen said. “This will only pour cold water on a very innovative sector.”

Now for a word on substitute amendment: When a substitute amendment is offered and accepted, it has the effect of wiping out the first amendment, which then can’t be offered again during the debate. It’s a way of doing away with things that the majority really doesn’t want to vote on.

During the past five years, I’ve mostly seen it used in the Senate my Democratic leaders to do away with Republican amendments they view as noxious – typically politically charged measures that could be awkward votes for rank and file members. I can’t recall the last time I saw a Dem on Dem substitute amendment.

I don’t know what, if any, conclusion can be drawn other than Hoyle was going to make darned sure his bill went through as is. Vote for the final measure was 41-7.

When big telecom pays the way, Senator Hoyle knows their needs must be met at all costs, no matter that his transparent shilling for the industry steamrolls over his fellow Democrats.  Besides, with his retirement looming (we’ll be watching to see where he lands next), who cares if his constituents are upset?  Certainly not Hoyle.

Fifteen Senate members stood against Hoyle’s ridiculous moratorium and deserve some recognition as well:

Senator(s): Allran, Atwater, Boseman, Dickson, Dorsett, Foriest, Goss, Jones, Kinnaird, McKissick, Purcell, Queen, Shaw, Snow, and Vaughan

Courtesy of Mark Turner, here is the audio from the Senate floor debate over S.1209 and the arguments for and against a municipal broadband moratorium. (June 7, 2010) (30 minutes)
You must remain on this page to hear the clip, or you can download the clip and listen later.

Tomorrow, the fight in the House begins with a call to action to start flooding members of the House Ways and Means/Broadband Connectivity Committee with calls and e-mails.  In the short House session, there are plenty of opportunities for us to derail this anti-consumer gift to the state’s cable and phone companies.  I’ll have a contact list up tomorrow.

S1209 would have sailed through the North Carolina Senate 39-5 this afternoon had it not been for Sen. Joe Sam Queen who objected to the third reading of the bill.  Senator David Rouzer (R-Johnston, Wayne) also changed his vote from “no” to “yes” which would have ultimately left the count at 40 for and 4 against.  After that, the Senate adjourned and will take up the bill once again on Monday.  What a job well done… for the cable and phone companies.

Brian Bowman reports that none of the Wake County senators opposed the bill or asked that the moratorium be removed.

Out of the entire North Carolina Senate, there are just four good guys?:

Senator Joe Sam Queen (Haywood, Yancy, Avery, Madison, McDowell, Mitchell) [email protected]
Senator Steve Goss (D-Alexander, Ashe, Watauga, Wilkes) [email protected]
Senator James Forrester (R-Gaston, Iredell, Lincoln) [email protected]
Senator John Snow (D-Cherokee, Clay, Graham, Haywood, Jackson, Macon, Swain, Transylvania) [email protected]

Be sure to send all four of these folks your enormous thanks for doing the right thing.  Apparently that is becoming more and more difficult these days.

For those who forgot why this fight matters, here’s a reminder.  Watch it.

[flv width=”480″ height=”380″]http://www.phillipdampier.com/video/Martha Abraham, Mars Hill NC.mp4[/flv]

The people in Mars Hill, N.C. cannot afford to forget.

Now let’s talk reality for a moment.  I’ve been involved in legislative battles on issues regarding telecommunications policy all the way back to the late 1980s when I was fighting for home satellite dish-owner rights.  Back then it was a struggle against big cable, too.  It took several tries, but we eventually won that one.  Along the way, a lot of the same legislative trickery involved in S1209 reminded me of similar experiences back then.  We shouldn’t make the same mistake twice.  Let’s take a look:

The revised S1209 establishes a subcommittee to study municipal broadband funding issues while buying the industry a one year reprieve from any other cities or town going their own way.  The members on this fact-finding endeavor are specifically defined:

• A cable service provider.
• A wireless telecommunications service provider.
• A local exchange provider that is not a wireless telecommunications service provider.
• A local exchange provider that is a wireless telecommunications service provider.
• A city that operates a cable system and an electric power system as a public enterprise.
• A city that operates a cable system as a public enterprise and does not operate an electric power system as a public enterprise.
• A city that is a member of a joint agency established under G.S. 160A-462 for the operation of a cable system as a public enterprise.
• The North Carolina League of Municipalities.

Now, can anyone reading tell me who is -not- on the list?  Have you guessed?

-You- are missing from this list!

Everyone else is in the back room — cable and phone companies, cities, and a lobbying group representing cities.  But not one North Carolina consumer who lives with broadband challenges day in and day out has a place at that table.  What do they know anyway?

[flv width=”480″ height=”380″]http://www.phillipdampier.com/video/Brooks Townes Weaverville NC.mp4[/flv]

Brooks Townes in Weaverville doesn’t have a seat at the table, either.

How ironic that everyone holding a seat claims their interests coincide with ordinary citizens like you and I.  After all, we’re supposed to be what this fight is all about.  Sometimes, our interests will meet.  Other times, especially when it comes to legislative strategies, they might not.

An Uncomfortable Revelation Caught On An Open Mike

Thanks to WUNC’s Laura Leslie, you can listen yourself as Senator Clodfelter, not realizing his mike was on, tells Senator Blue, “Now I’ll tell you that the … what I call the crazies who circulate around this issue are not going to like this [S1209 revision with a moratorium], but the municipalities are all on board. They negotiated it, they negotiated it so it’s not possible….” Blue asks Clodfelter how long he’s been talking with the groups representing municipalities. Clodfelter’s response: “We’ve been meeting daily — twice daily, so they’re all on board with this precise text.” The recording ends with Clodfelter presumably tapping his mike. Is this thing on? You bet it is. (June 2, 2010) (50 seconds)
You must remain on this page to hear the clip, or you can download the clip and listen later.

We already know what Senator Clodfelter feels about the people who are appalled at yet another embarrassing year of legislators falling all over themselves to do big cable and phone companies another favor.  In his mind, we’re the “crazies” — the indignant citizens fed up with the time, money, and effort not spent building 21st century broadband networks, but instead devising strategies to prevent building them.

Corning has a plant in North Carolina that manufacturers endless miles of fiber optic cable that 40 members of the North Carolina Legislature just said they don’t need.  Send it somewhere else.

Those 40 senators just told citizens — who are still using dial-up Internet access in the Appalachians, or who can’t afford the asking price for service in Spring Creek, or who only get excuses from AT&T why certain homes in Alamance County can have broadband, but they cannot — they really don’t care.  What AT&T, Time Warner Cable, and Embarq wants is much more important.

[flv width=”480″ height=”380″]http://www.phillipdampier.com/video/Layten Davis Spring Creek NC.mp4[/flv]

…More important than the needs of folks like those in Spring Creek.

So while they propose to hold a debate over the merits of the free market vs. community’s doing-for-themselves when the free market fails them, countless thousands of North Carolina’s residents go without or are still hearing modem tones as they connect at speeds dozens of times slower than everyone else.

With a legislature hellbent on stalling or stopping projects that ameliorate this serious problem, no wonder North Carolina’s broadband rankings are falling fast.  In 2007, the Census Bureau ranked North Carolina 35th in broadband adoption.  A year later, the state was down to 41st.  At least you can be proud you’re not West Virginia, right?

But then again, there are eight more positions to drop, so there is still room to make things even worse.

Now I ask myself, what could have possibly happened to deliver 40 votes into the hands of big cable and phone company interests.

Could it have been the time honored trick of dividing and conquering the opposition?  For cities who want to deliver service, the threat of “either/or” seemed particularly effective.  Either take our one year moratorium -or- face the ludicrous original legislation that required a community-wide referendum if Mrs. Nickels over on Fairfax Drive needs a new cable installed at her home to get a better picture.  Either way, because certain folks didn’t say no way to either choice, it’s a victory party for Time Warner Cable, with no need to BYOB — they’ll provide it themselves.  Besides, say the bill’s supporters, we’re offering a chance to hear your voice and views on our stall-tactic fact-finding subcommittee.  Senator Clodfelter even thanks you for being reasonable and adult about all this.

AT&T thanks you as well.

Just keep those “crazies” out of the room.

Cable and phone companies get seats, so they can continue to deliver their talking points that don’t actually deliver broadband to any underserved area of North Carolina. Haven’t they said enough already?  As Senator Queen asked, where is the broadband service for my communities?

In the end, the fact finding mission (cough) will deliver a watered-down report that will find its way into the nearest recycling bin.  The cities’ strong views on municipal broadband will be diluted because they’ll have four competing voices from private industry saying the exact opposite.  Besides, after yesterday’s performance in the Senate Finance Committee, does anyone really believe members like Senator Hoyle care what the subcommittee will have to say?  He can just make it up as he goes along, just as he did when supposedly quoting the mayor of Salisbury.

After all the years spent watching negotiations over legislation, allow me to share this one piece of advice — collaborate and compromise with interests that seek to bury you at your own risk.  Big money interests will call you every name in the book for standing and fighting for your principles (and a few legislators too), but if you make it known it’s time for the other side to start compromising — by actually delivering service and charging a reasonable price for it, there wouldn’t have been a need to engage in this battle in the first place.

That’s why this “crazy” website didn’t back down when Time Warner Cable brought its “new and improved” Internet Overcharging scheme to the table after consumers rebelled against the original plan.  The cable company promised a listening tour, to take advice from reasonable consumers, and to modify its plans accordingly.  Some folks played the game on their field — debating numbers back and forth about what an appropriate amount of rape and pillaging of our wallets was tolerable.  Time Warner changed a few numbers and blessed us with a counteroffer that would have only tripled broadband prices for the same level of service.  Couldn’t we be reasonable and take their offer?

We said no and stood by it, even if it meant going down with a fight.  By not backing down, we won the battle knowing full well the war wasn’t actually over yet.  But you can’t win a battle, much less a war, if you surrender and refuse to fight.

In the end, we were right and they were wrong.  We even proved they were never really interested in listening in the first place.

The correct way forward is to remain 100 percent committed to opposing S1209, so long as it stalls, bans, slows, or sets onerous conditions on providing broadband relief.  That means calling every senator between now and Monday and then doing the same in the House.

The three words you need to remember are real simple:

Kill this bill.

If you are spending time negotiating over who gets to sit in what chair on the subcommittee, you are not paying attention.

Kill this bill.

If you are trying to split the difference over how long the moratorium is going to last, you do not understand.

Kill this bill.

If you are trying to extract some extra concessions to reduce the rape and pillaging of your citizens, stand up, take a deep breath, go outside, and then tell the first person you see to call their representatives and tell them to:

Kill this bill.

If you are a consumer, you’re probably already upset.  In a polite, persuasive, and persistent way, tell your elected officials you understand S1209 has been modified thanks to a compromise, but nobody bothered to compromise with you.  You aren’t interested in this bill in any form, and you know that legislator is going to do the right thing and vote no to:

Kill this bill.

If they vote yes, all they’ve managed to kill is your faith in them as your elected representative.  That’s something that can be taken care of at the next election.

Maybe people like me are crazy to dare to presume that our elected officials work first and foremost for “we the people” and not for the phone and cable company.  Maybe it’s nuts to spend so much time and energy fighting legislation that is so obviously written by and for the industry that cuts a check to the first representative willing to put their name on it and introduce it.  We’ve seen the merits of those who tried the same thing last year.  Only one of them is no longer with the state legislature, brought down on ethics charges.  How surprising.  This year’s fight is lead by a retiring senator who will never endure the satisfaction voters might get disconnecting him from the legislature for selling them down Telecom River.  That is not too surprising either.

Pot?  Meet Kettle!

In one of the biggest ironies thus far this year, a British broadband provider trying to one-up the competition has started running ads with Dr. Seuss-like characters that represent marketing exaggerations, traps, and bad customer service, all while forgetting to disclose it engages in some tricks of its own.

O2’s Niggles & Narks campaign features animated creatures that represent where broadband has gone all-wrong:

[flv width=”640″ height=”380″]http://www.phillipdampier.com/video/O2 Niggles and Narks Ad 5-2010.flv[/flv]

Once upon a time, when broadband was made, we browsed and surfed and chatted — everybody played.

But for some, the magic faded.  Some things started to go wrong.

Without any warning, the niggles and nobs came along.

With the No Support-a-Saurus — spouting twaddle was his game.  His impossible instructions would slowly knot your brain.

The Crafty-Cost Nark took pleasure in his work, delivering line rental bills that drove us all berserk.

And with the Mystery-Speed Mook, you never really know. You thought you’d get mega-fast but got stuck with dead slow.

But this is where we draw the line and try to right what’s wrong.  Wouldn’t broadband be a better place, with narks and niggles gone?

But accusing the others of broadband narks and niggles -you- see, without confessing your own is little more than hypocrisy.

In a land of broadband O2 promises is not a dream, it brings to the table its own Internet Overcharging scheme.

No nobble or niggle could ever believe, selling unlimited broadband -that wasn’t- was something they could achieve.

But O2 managed — somehow, we don’t know, to define “unlimited” as 10GB per month — exceeding it brings woe.

O2 sells its broadband packages across the United Kingdom, either bundled under a BTWholesale-based package or unbundled direct from O2 or BeBroadband.  Only the BTWholesale accounts, common in rural areas where O2 doesn’t have its own equipment installed in the exchange offices, are impacted by the limit on unlimited.  BT apparently charges them some form of consumption billing, and they aren’t willing to eat the costs.

Starting in March, many customers started receiving letters stating they were using the service too much, and if they didn’t back off, they’d be disconnected.  One customer received a disconnect warning after using 40.1GB, primarily from watching BBC’s iPlayer, which delivers on demand television programming.

What represented “too much” for an “unlimited service?”

“Most O2 customers use less than 10GB a month. Aim for that and you’ll be okay,” says one of O2’s support pages on the topic.

Outraged consumers arguing that “unlimited” should mean “unlimited” and didn’t comply were promptly disconnected.

With the introduction of O2’s new high-priced Niggles & Narks advertising campaign, the hilarity ensued as customers began calling out O2’s hypocrisy, leading to clarifications from O2 that were anything but:

As some of you have been discussing, we’ve started to disconnect some of the very highest usage customers whose download patterns have detrimentally affected other customers’ experience, even after we have requested them to reduce their usage and explained the effect it’s having. We will continue this in order to improve the experience for the majority of the customers on the service.

We are also making the service run more efficiently by updating the hardware and software that runs the Access service. This will improve the prioritization of the real-time activity, such as streaming, over less time-sensitive activities such as P2P. — O2 Statement from March 26th 2010

Then there is this fine print on the question of “unlimited service” that only a credit card company or bank could love (the underlining is ours):

How much should I cut my broadband use?

Most O2 customers use less than 10GB a month. Aim for that and you’ll be okay.

Your product is unlimited, so why are you telling me to use less?

There aren’t any usage limits on any of our O2 Home Broadband packages. That means you can download and upload as much as you like each month, within reason.

Our network’s been designed to cope with people downloading large files (like music or films) and watching video online. But if you’re using the service excessively – like continually downloading large files at peak times – then we do reserve the right to warn you to lower your usage. In exceptional circumstances, we can even terminate your account.

This is because excessive use by a few people can reduce the speed that other customers in the same area can get. We just want to provide everyone with an excellent level of service.

Then company officials unofficially increased the limit to 40GB per month, as this note on an official company forum disclosed:

We’re contacting less than 10% of our heaviest users at the moment and you fell into this top tier. The majority use less than 10GB and at present if you use less than 40GB, you wouldn’t hear from us.”

This isn’t the first time O2 has confused its customers.  ThinkBroadband reminds us of 2007’s mess over the same issue:

O2 have never been good at defining the term ‘unlimited’ as can be seen in 2007 when they had three different definitions for the word. Back then they did recognize that customers were confused by the term and the marketing director Sally Cowdry was quoted as saying “customer feedback has been that if we say unlimited, it should be unlimited.” We wonder why two and half years on, O2 still have not ‘nobbled this broadband niggle.’

Unfortunately for O2 customers, the company has not righted any broadband wrongs.  They’ve added to them.  O2 has an chronic problem with their own Niggles and Narks.  Perhaps British regulators can do a better job exterminating them.