Thune

Sen. John Thune (R-S.D.) slammed the Federal Communications Commission for its “unacceptable failure” to expand rural broadband service and close America’s rural-urban digital divide.

Thune’s comments were directed to FCC Chairman Ajit Pai, appearing Thursday before the Senate Commerce Committee the South Dakota Republican chairs. Thune complained rural broadband expansion has slowed in his rural state, something he blamed on the FCC’s “inaction.” Thune criticized the FCC’s cuts to the Universal Service Fund, implemented as part of an effort to reduce the FCC’s budget.

“The FCC’s failure to ensure sufficient and predictable funding jeopardizes the vitality of America’s rural communities, and makes it much, much harder for our witnesses and others like them to deploy broadband,” Thune said in his opening remarks. “This is simply unacceptable.”

Thune claims the FCC’s cuts have increased by almost 25%, and there has been no study undertaken to determine the impact those cuts have on rural broadband expansion.

“Rural Americans should never be left behind their urban counterparts,” Thune added.

Pai defended the FCC’s actions under the Trump Administration, claiming the Commission is allocating nearly $6 billion for Connect America Fund subsidies and additional money for rural wireless projects. Pai claimed the FCC is providing $340 million to bring 4G LTE service to tribal lands, with additional funds available when those rural broadband subsidies are exhausted. Most of the money is being paid to subsidize for-profit companies.

Pai also claimed his broadband policy reforms, such as repealing net neutrality and other deregulation will stimulate new private investment independent of the Commission. To help that expansion, Pai suggested the recently proposed rules to streamline new cell tower approvals and ease up on historic preservation and environmental reviews will speed rural rollouts.

But both Sen. Thune and Chairman Pai have steadfastly opposed municipal and public broadband expansion projects designed to close the rural broadband gap in areas where for-profit ISPs have refused to serve without subsidies.

West Virginia still ranks 43rd in the nation for having the worst broadband availability, despite claims from providers like Frontier Communications that rural broadband expansion has been ongoing and have cost the company tens of millions of dollars.

The state’s two senators are working to get more attention on broadband issues in one of the country’s most rural and mountainous states, despite the fact the free market is not likely to solve West Virginia’s broadband woes.

“Broadband high-speed is tremendously needed,” said Senator Joe Manchin (D-W.V.). “We have over 18 to 20 percent of West Virginians not connected whatsoever.”

“I’m working everyday on this in a bipartisan way,” said Senator Shelley Moore Capito (R-W.V.). “It’s essential for our economy, our health care, our education. All of the things that are in a new economy.”

The federal government has distributed broadband grant funds to help address rural broadband unavailability, but after a decade of assistance, rural residents often remain without service. Charlie Dennie believes taking charge of broadband issues on the local level is the only way broadband problems will finally be resolved. Dennie is a big believer in public broadband co-ops, where local communities manage their own internet access affairs without waiting around for big phone and cable companies or the federal government. Dennie runs a business in the state that depends on broadband, and if he waited for incumbent providers like Frontier to deliver 21st century broadband service, his business is likely to go out of business.

That prompted him to write this commentary:

Dennie

Much of West Virginia is a broadband desert, and we have been foolishly pleading with the major carriers for water.

Recently, we seem to be coming to terms with reality. The reality is, they’re not coming, broadband is not a utility. The international, modern-day, robber barons dominating internet delivery have no obligation or incentive to meet our needs. Their aggressive return on investment models can’t be met in the small markets. Still, they attempt to roadblock appropriately scaled providers from entering the market and meeting our needs.

Since internet and cable TV are not utilities, the carriers are free to pick the low hanging fruit of our more densely populated communities and move on, leaving smaller markets stranded on the wrong side of the digital divide. The major carriers’ only obligations or concerns are with Wall Street. Main Street and all that term implies is not a consideration.

If we’re going to see our desert watered and blooming, we’ll be digging our own wells, meaning, building our own networks. The incumbent telephone companies and the cable TV providers bristle at this idea. The major providers spent over $66 million last year to lobby the states and Congress. Twenty-one states have now roadblocked or outlawed municipal or community-owned fiber. Municipal or community owned fiber is a serious threat to the status quo.

In years past, no one would have been surprised if West Virginia lawmakers had sat on their hands and done nothing or, enacted more protectionist legislation. That didn’t happen with this Legislature. Paraphrasing Bob Dylan, “The times they are a-changing.”

During the 2017 legislative session, I witnessed the boldest and most fearless leadership in my memory. The House of Delegates Judiciary Committee led by its chairman, Del. John Shott (R-Mercer), and Vice-Chairman, Del. Roger Hanshaw (R-Clay), introduced HB-3093. It was a sweeping piece of legislation sending a strong message to the incumbent internet providers to provide better service or make room for someone who will.

Carmichael

HB-3093 created the West Virginia Broadband Enhancement Council, streamlined the process for attaching fiber to utility poles, cleared the way for new construction methods, authorized the West Virginia Economic Development Authority to make loan guarantees for broadband construction and authorized the creation of cooperative associations for internet. As a proponent of the legislation, I requested a public hearing. Gathering in the House chamber only hours before the vote, industry lobbyists voiced strenuous objections. The strongest objections to the bill were the provisions streamlining attachments to utility poles and authorizing cooperative associations to provide broadband.

HB-3093 passed the house with 97 votes. I spoke to Senate President Mitch Carmichael (R-Jackson), just before the bill was introduced in the Senate. Sen. Carmichael had the power to keep the bill from advancing and Frontier, his employer at the time, was out in force to stop it. Before the bill went to the floor Sen. Carmichael said to me, “They’ll fire me, but I have to do what I think is right.” HB-3093 passed the Senate with Sen. Mike Romano (D-Harrison), casting the single, dissenting vote. A few days later, Frontier Communications fired Sen. Carmichael. Today, there are some who want to “Ditch Mitch,” but I will always remember the day he was called to choose between his economic self-interest and what was best for his constituency. Mitch fell on his sword. He did what he thought was right.

It’s important to know where you have been to understand where you are going, and this is only a chapter of our emerging broadband story. Changing the rules that protect the powerful to move us forward requires courageous leadership. If you believe broadband isn’t a political issue, I can give you 66 million reasons why you couldn’t be more wrong.

Ironically, community owned networks will be good for the current providers. The community owned networks provide the “last mile” to the home or business that enables delivery of high-speed internet. The community networks still need the content provided by current carriers. The communities will have choices and can negotiate with providers. Everybody wins.

I’ll have more for you later. Meanwhile, visit the broadband council at https://broadband.wv.gov. Take the speed test, then look under the “Resources Tab” about co-ops. Ignore the naysayers. I’ll show you how co-ops will change everything.

A Rochester, N.Y.-based broadband company founded by an ex-president of Time Warner Cable and a former top executive at Rochester Telephone is bringing broadband competition to thousands of residents in Connecticut and Pennsylvania through its fiber-to-the-home network.

GoNetspeed has been aggressively expanding its service in Comcast, Verizon, and Frontier Communications service areas in suburban Pittsburgh and several cities in Connecticut. According to chief operating officer Tom Perrone, GoNetspeed has managed to buildout 100 network miles of fiber across 13 towns in two different states in just the first six months of 2018, providing a new choice for broadband service to over 30,000 homes and businesses.

Most recently, the company completed expansion in the New Haven, Conn. neighborhoods of Beaver Hills, Edgewood, and West River, adding an additional 3,000-5,000 homes to its network service area.

GoNetspeed prioritizes expansion in areas where there is little competition and where neighborhood density makes it financially feasible to bring fiber optic cables into an area. The company markets its service with simplified, lifetime pricing:

• $50 for 100/100 Mbps
• $70 for 500/500 Mbps
• $90 for 1,000/1,000 Mbps

In areas when service is first offered, the $100 installation fee is traditionally waived. There are no data caps. Static IPs and inside wiring are available at an additional cost.

GoNetspeed has received positive reviews from customers in parts of Bridgeport and West Hartford, where service is already available in Connecticut. In suburban Pittsburgh, GoNetspeed is available in parts of Ambridge, Beaver Falls, Baden, Conway, Beaver, Monaca, and Rochester. Over the summer, it announced it would soon also service New Brighton and Aliquippa. In general, the company wires neighborhoods where at least 10% of residents are committed to signing up for service. In Pennsylvania, it faces competition primarily from Comcast and Verizon. In Connecticut, competition will come from incumbents Comcast, Altice USA, and Frontier.

GoNetspeed’s headquarters are in suburban Rochester, N.Y. Ironically, it does not offer residential service in New York.

A GoNetspeed truck

The company originally behind GoNetspeed was Fibertech Networks (since sold to Crown Castle, a cell tower owner/operator). The founding partners were John K. Purcell, a former vice president at Rochester Telephone Corporation (now Frontier Communications) and Frank Chiano, the former head of Time Warner Cable in Rochester.

Fibertech was founded in 2000 as a fiber optic network operator. Purcell passed away in 2017, but Fibertech continued, eventually amassing a valuable 14,000 mile metro fiber network serving cities around the northeast. Fibertech served commercial customers like corporations, institutions, and wireless network operators seeking fiber connections to buildings or cell tower sites.

In the last several years, fiber network operators have started to enter the retail broadband marketplace as fiber overbuilders — providing fiber to the home service to areas where demand warrants investment. Most overbuilders target areas where no existing fiber competitor exists, which makes the northeast a viable target.

Verizon dropped its FiOS fiber to the home network expansion project eight years ago and incumbent telephone companies including Verizon, Frontier, Consolidated (formerly FairPoint), Windstream, and CenturyLink have shown little interest in investing in significant fiber upgrades in medium-sized cities in New England, the Northeast, and Mid-Atlantic region. That has given Comcast and Charter Communications — the two largest cable operators, a substantial and growing market share. But customers often loathe both cable operators, and there is built-in demand for new competition.

New Haven. Conn.

Local officials are also happy to see another competitive option. New Haven officials, like many others in Connecticut, have embarked on an effort during the last few years to attract new players to the state, especially after Frontier Communications acquired the assets of AT&T Connecticut. Many communities in Connecticut report a significant digital divide, particularly over the cost of internet access. New Haven, which has a significant low-income population, is happy to see GoNetspeed be part of the solution, but has wondered if GoNetspeed will expand service into lower-income areas of the city.

Connecticut Consumer Counsel Elin Swanson Katz, whose office manages broadband expansion in Connecticut, told the New Haven Register GoNetspeed’s expansion in New Haven “is just another strong indicator that Connecticut consumers are interested in having different options for broadband Internet service.”

“The more competition there is for consumers, for them to have choices, the better off we are,” Katz said. “It’s really important for our state to have ubiquitous access to affordable high-speed broadband that is reliable and that touches every corner of out state.”

Connecticut’s telecommunications regulator has effectively banned public broadband in the state, ruling that municipalities cannot use their reserved space on utility poles if it means competing with the state’s dominant telecom companies — Comcast, Altice, and Frontier Communications.

The ruling by Connecticut’s Public Utilities Regulatory Authority (PURA) is a death-blow for municipalities seeking to build gigabit fiber networks to offer residents the broadband speeds and services that incumbent phone and cable companies either refuse to provide or offer at unaffordable prices.

Among the petitioners appealing to PURA to protect them from competition is Frontier Communications, which owns a large number of utility poles across the state acquired from AT&T. The company was unhappy that municipalities were planning to use reserved space on state utility poles to construct fiber to the home networks that are generally superior to what Frontier offers consumers and businesses in the state. Other providers, like Frontier, said little about the early 1900s Connecticut statute that guarantees municipalities “right of use space” on poles until it became clear some communities were planning to threaten their monopoly/duopoly profits.

The law was originally written to deal with the dynamic telecommunications marketplace that was common in the U.S. during the late 1800s and early 1900s. Utility pole owners were confronted with a myriad of companies selling telegraph and telephone service — all seeking a place on increasingly crowded poles. Local governments could have been crowded out, were it not for the “Act Concerning the Use of Telegraph and Telephone Poles,” approved on July 19, 1905. It was one sentence long:

Every town, city, or borough shall have the right to occupy and use for municipal purposes, without payment therefor, the top gain of every pole now or hereafter erected by any telephone or telegraph company within the limits of any such town, city, or borough.

The law stood as written until 2013, when the legislature clarified exactly who could benefit from the use of “municipal gain.” Where the original law effectively protected reserved pole space for “municipal” use, the language was broadened in 2013 to read “for any purpose.”

Observers said the law was modified because of ongoing disputes with pole owners relating to planned municipal broadband projects. Frontier, in particular, has sought restrictive pole attachment agreements with communities trying to build out their broadband networks. In addition to accusations of foot-dragging over issues like “make ready” — when existing pole users move wiring closer together to make room for new providers, Frontier has tried to impose restrictive language on communities that would permanently restrict their ability to offer service. The most common restriction is to compel towns to agree to use their pole space exclusively “for government use,” which would restrict third-party providers hired to manage a community’s municipal broadband service.

PURA’s decision surprised many, because it completely ignored the 2013 language changes and relied instead on its perception of a conflict between state and federal laws. PURA ruled “municipal gain” establishes “preferential access” for towns and communities, and could be in conflict with the federal Communications Act, which mandates “non-discriminatory access” to utility poles, and prohibits local governments from blocking companies from providing telecommunications services.

“Providing municipal entities free access to the communications gain for the purpose of offering competitive telecommunications services … appears to be inconsistent with these principals and other aspects of federal law,” the decision reads.

In the early 20th century, vibrant competition meant a lot of utility poles were crowded with wires.

Except communities are not seeking to block providers looking to offer broadband service. These communities are seeking to become a provider. Pole attachment controversies typically relate to unreasonable limits on access to poles and allegations of price gouging pole attachment fees, not “preferential access.”

The end effect of PURA’s ruling: communities can use their pole space for government or institutional purposes only, such as building closed fiber networks available only in public buildings like libraries, schools, town halls, and police and fire departments. It also means any community seeking to build a fiber broadband network serving homes and businesses will either have to pay market rates for pole space, give up on the project, or place all the project’s wiring exclusively underground — a potentially costly alternative to aerial cable and one likely to cost taxpayers millions.

“We are very disappointed in the decision,” Consumer Counsel Elin Katz told Hartford Business. Katz is a strong supporter of municipal broadband. “It ignores the plain language of the statute, and by deciding that [municipal gain] cannot be used by our cities and towns to provide broadband to those affected by the digital divide, denies our municipalities a tool provided by the legislature for just that purpose.”

Frontier and the state’s cable and wireless companies, however, are delighted PURA has come to their rescue, calling its decision “fully consistent with the law.”

“Frontier Communications continues to support efforts to expand broadband access in Connecticut,” said spokesman Andy Malinowski. “PURA reached the correct result. This decision helps ensure the continuation of robust broadband competition in our state.”

The New England Cable & Telecommunications Association (NECTA), the cable industry’s regional lobbying group in the region, was also happy to see an end to unchecked municipal broadband growth and the competition it will bring.

“Our members, who pay millions of dollars annually to rent space on utility poles, offer competitive broadband services with speeds ranging up to 1 gigabit-per-second for residential Connecticut customers, in addition to offering speeds up to 10 gigabits for business customers,” noted NECTA CEO Paul Cianelli.

Other supporters of PURA’s decision include the wireless industry lobbying group CTIA and the Communications Workers of America — unionized employees at Frontier Communications who fear their jobs may be at risk if a municipal provider gives Connecticut customers an additional option for broadband service.

PURA’s decision leaves little room for municipal broadband expansion efforts that have been underway in the state for a decade. Most projects that cannot afford to pay for space on utility poles or the cost to switch to underground cable burial will probably not survive unless a court overturns the regulator’s decision or the state legislature clarifies state law in a way that makes PURA’s current interpretation untenable.

A number of groups are considering suing PURA to overturn its decision, noting the regulator completely ignored the very clear and understandable 2013 language that allows municipalities to use their allotted space on utility poles “for any purpose.” That purpose includes giving the state’s telecom duopoly some competition.

A utility pole with Charter Communications wiring in upstate New York.

Charter Communications has been caught counting upstate New York homes and businesses as newly served when, in fact, many have had cable service for years.

New York’s largest cable operator is once again under fire over questions about whether it is misled state officials in its claims to be expanding rural broadband service to 145,000 unserved homes and businesses. In many instances, New York regulators found evidence the company was counting residents as “newly passed” by Spectrum cable lines when regulator on-site audits found those customers were already served by Spectrum or another broadband provider.

The Buffalo News reports staff members of the New York Public Service Commission visited multiple properties and took photos and notes finding simple overhead cable replacements or non-existent addresses were counted by Charter as new expansion areas to be counted towards its agreement to expand rural broadband in return for approval of its 2016 acquisition of Time Warner Cable.

The PSC has already repeatedly admonished Charter Communications for failing to keep to its broadband expansion agreements. The regulator has also warned the company faced at least $1 million in fines and franchise revocation proceedings in parts of New York City for allegedly miscounting 12,467 addresses in dense urban areas of New York City that either already had access to Spectrum cable service or should have under New York City’s franchise agreement.

Based on the latest list of invalid addresses rejected by the PSC, thousands are located in rural upstate New York. Charter is the biggest cable operator in every part of New York State except Long Island, and a few New York City boroughs where Altice’s Cablevision is the dominant provider. Some parts of rural New York are served by independent cable operators or co-ops, and 1,726 addresses Charter listed as “newly passed” were declared invalid after the PSC discovered they were already served by Charter/Spectrum or another provider. The agreement required Charter not to count areas where New York State paid taxpayer dollars to subsidize rural broadband expansion from other providers like telephone companies.

If Charter is unable to provide evidence refuting the PSC’s findings by May 9, 2018, the PSC will fine Charter $1 million. The company was required to maintain a $12 million line of credit after its earlier lapses that can be drawn upon by New York State to efficiently collect fines and penalties.

Stop the Cap! filed a recommendation with the PSC in April that it impose new sanctions against Charter if it is once again found deficient in meeting its commitments. Specifically, the group recommended the PSC impose a requirement that Charter further expand its network to reach as many New York homes and businesses reasonably within reach that have recently been assigned to receive satellite internet access. More than 70,000 rural New Yorkers were disappointed to learn they would not receive promised broadband service from a wired broadband provider because no companies bid to serve these potential customers.

“Compelling Charter to broaden its reach by as few as three miles beyond where it stands today could bring a number of upstate New York residents their only practical chance of getting true broadband service,” said Phillip Dampier, Stop the Cap!’s founder and president. “Fines punish bad behavior but don’t bring anyone broadband service. We’d prefer they be required to spend that money and more on helping erase New York’s urban-rural digital divide once and for all. Satellite internet is an unacceptable solution for all but a small number of these broadband-stranded New Yorkers.”

Cuomo

New York Governor Andrew Cuomo chimed in on Wednesday through his press secretary, criticizing Charter’s alleged bad behavior.

“The State approved Spectrum’s acquisition and its ability to operate in New York based on the fulfillment of certain obligations, including providing broadband access to underserved parts of the state and preserving a qualified workforce,” said Dani Lever, press secretary to Gov. Andrew M. Cuomo. “The governor believes it is essential that corporations doing business with the state uphold their commitments, and we will not tolerate abusive corporate practices or a failure to deliver service to the people. Large and powerful companies will be held to the same standard as all other businesses in New York. The Spectrum franchise is not a matter of right, but is a license with legal obligations and if those are not fulfilled, that license should be revoked.”

In response, Charter strongly denies the allegations and claims it not only isn’t guilty of overcounting new rural passings, it is actually delivering rural broadband expansion ahead of schedule.

“Charter is bringing more broadband to more people across New York state,” the company said in a statement. “We exceeded our last build-out commitment by thousands of homes and businesses.  We’ve also raised our speeds to deliver faster broadband statewide. We are in full compliance with our merger order and the New York City franchise.”

The original 2016 merger approval agreement called on Charter to expand its Spectrum cable service (formerly known as Time Warner Cable) to an additional 145,000 New York locations over four years. Charter’s standing with the PSC was quickly called into question when the company broke its commitment to reach the first 36,250 properties no later than May, 2017.

“It should have been clear to Charter its buildout schedule and commitment was in serious trouble by Thanksgiving of 2016 — just months after completing its $56 billion buyout of Time Warner Cable, when it reported it had achieved only 7,265 new service passings so far,” said Dampier. “By the deadline, Charter only managed to reach 15,164 newly served properties, less than half what it promised. Now the company claims it is overachieving its commitments, but is it fudging the numbers?”

John Rhodes, chairman of the PSC, seems to think so.

When the department’s staff went out on road trips to audit some of Charter’s claimed “new passings,” it discovered troubling evidence that “many of these claimed newly completed passings actually consisted of cable and equipment upgrades to existing cable plant. In other words, Charter replaced older cabling and equipment on a pole with newer cabling and equipment, but the location had already been passed by the cable network, oftentimes having been originally passed with cable [service] for years,” according to Rhodes.

The PSC did not surprise Charter with the results of its audits at the last minute either. New York’s PSC notified it had started actively auditing Charter’s claimed passings as early as January, 2017. Each month, staff members sent the results of those audits to Charter, showing exactly what properties appeared not to be in compliance with the approval agreement.

Rhodes

The audit was comprehensive, according to Rhodes:

DPS Staff’s audit process involved field inspections of targeted address locations identified by Charter as completed. Department Staff used GPS and other mapping tools to identify addresses, cross roads, and landmarks in the periphery of the target inspection addresses. When an address was positively identified, DPS Staff made observations at the claimed completed location to determine if cable network (either aerial or underground) was present, and if so, was the cable newer or older vintage, and whether or not cable was already present and passing the location prior to January 2016. Amongst other things, Field Inspectors made visual observations of cabling, electronics, power supplies, connectors, cable shrink tubing and related attachments for overall condition, including signs of wear, corrosion, and discoloration that would associate weathering and age of the outside plant facilities. Department Staff also looked for noticeable recent additions of cable tags, subscriber drops, as well as the attachment conditions of other pole attachers to help determine if there had been any recent physical moves or changes to the facilities. Further, DPS Staff made visual observations of the foliage and vegetation in the periphery of the communications space, looking for signs of recent trimming or other activity that might indicate outside plant work activity.

The final straw may have been Charter’s December, 2017 buildout list, which included 42,889 claimed new passings. PSC staffers audited 6,389 addresses in upstate New York, revealing disturbingly low verified compliance with the expansion agreement. Of those upstate addresses, Rhodes’ report claims 465 audits were unverifiable or undetermined, 1,726 were recommended for disqualification because there was pre-existing cable service at those locations, and another 1,597 addresses were apparently duplicates from previous quarterly Charter buildout lists the company may have attempted to count twice.

Charter’s most recent settlement agreement set a schedule for rural broadband expansion, with deadlines, benchmarks, and substantial fines for missing either:

• 36,771 properties by Dec. 16, 2017;
• 58,417 by May 18, 2018;
• 80,063 by Dec. 16, 2018;
• 101,708 by May 18, 2019;
• 123,354 by Nov. 16, 2019;
• 145,000 by May 18, 2020.