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Cuomo Administration Capitulates on Affordable Broadband Law; State Laws Cannot Regulate Broadband Pricing

Cuomo

As expected, New York’s efforts to lower broadband pricing through a state mandate has been effectively killed in a Brooklyn federal court, putting an end to Governor Andrew Cuomo’s efforts to require providers to offer a $15 broadband tier to income-challenged state residents.

U.S. District Judge Denis R. Hurley, who signed a preliminary injunction preventing the mandate from taking effect on June 15, signaled the concept was likely unlawful in a memorandum attached to the injunction. Several telecom companies challenged the mandate in a lawsuit heard in Hurley’s courtroom, claiming states have no regulatory authority to set broadband terms or pricing. Hurley was clearly persuaded in their direction, and was pessimistic the state could ever show a legal way to regulate internet pricing, something currently reserved to the FCC. As a result, a settlement has been proposed dropping the affordable pricing mandate.

Hurley was also moved by arguments from several smaller New York providers that claimed the new mandate would force them to sell service below cost. Empire Access, a fiber to the home overbuilder based in Prattsburgh, filed a declaration with the court threatening to cancel a major expansion project to wire customers in Livingston and Broome counties, including the city of Binghamton, if the mandate was implemented, because it would likely lose federal funding.

Because of the state’s definition as to who would have qualified for the affordable broadband tier, many smaller companies in rural, economically challenged area of upstate New York claimed they would face substantial economic losses to their businesses. Empire claimed it would lose “approximately $2 million per year,” Heart of the Catskills claimed top-line revenue would decrease $1,364,000 annually, Delhi Telephone claimed it would lose at least $90,000 per month, and the Champlain Telephone Company notified the court that “nearly half (48%) of its existing broadband customers will qualify for discounted rates,” causing the company to lose money on each customer.

“While a telecommunications giant like Verizon may be able to absorb such a loss, others may not,” Judge Hurley wrote in his order.

Gov. Cuomo bristled after learning of the lawsuit, threatening to revoke the franchise of any company that refused to implement the  state’s affordable broadband program. But the governor has made empty threats before, including a promise in 2018 to revoke the merger of Charter Communications and Time Warner Cable because the company failed to live up to the deal commitments it made to state regulators. A settlement was eventually reached between the cable giant and the state, and it appears a settlement between the plaintiff telecom companies and the state will also end this dispute and lawsuit. It appears the state has capitulated and plans to walk away from the affordable broadband proposal, although it reserved the right to appeal the case.

Stop the Cap! predicts the state will work with larger providers to increase public knowledge of the companies’ existing affordable internet programs, which usually have similar qualifications to the affordable internet law Cuomo proposed. Cuomo Administration officials will also likely lobby the Biden Administration to toughen federal oversight of broadband service and suggest a possible federal mandate for an affordable service tier and a return to net neutrality under a regulatory framework that opens the door for future price and service regulation.

The court decision signals states the solution to broadband affordability will not be found in state laws or mandates that attempt to regulate broadband pricing, at least until the current federal law changes.

Frontier: Only the Customers With the Fastest Internet Speeds Get the Emergency Broadband Benefit

Some financially challenged customers subscribed to legacy DSL from Frontier Communications are finding they cannot qualify for the Biden Administration’s emergency internet discount program because their internet service is too slow.

WHEC-TV’s Jennifer Lewke heard from one Rochester, N.Y., area Frontier customer frustrated to discover the phone company refused to accept their application.

The discount comes from the Emergency Broadband Benefit, a temporary program offering financially distressed consumers $50 off their monthly internet bill until the funding for the program runs out.

The roadblock comes from Frontier, which created its own rule that only customers with 25 Mbps or faster internet service subscribed to select tiers of service can qualify for the discount. That eliminates many of Frontier’s most loyal DSL customers that have stayed with the company for over a decade, despite often getting internet speeds less than 10 Mbps.

News10NBC:

John Derycke of Rochester relies on the internet for a lot.

“My [Frontier] plan is $54.99 and then they tack on a $6.99 infrastructure charge,” he told News10NBC.

[…]

“I went to the site to verify eligibility, I qualify and that was on May 11, I called Frontier and I spoke to Monique and she told me everything’s great we’re good to go,” Derycke said.

But when his bill came the next month, there was no credit.

He didn’t like what he was told when he called.

“After being put on hold for 20 minutes, I finally got back with the woman and she immediately said you don’t qualify because you have 24 MB and you need 25,” Derycke said.

He says he then asked to talk with a supervisor who basically told him the same thing.

Derycke says he searched the EBB page and information and couldn’t find a requirement that a customer have a plan with a certain level of megabits to qualify.

Based on that phone call with Frontier, Derycke would have to switch to the dominant internet provider in western New York, Charter Spectrum, just to get the $50 monthly credit. Based on current promotions, that would likely leave Derycke paying nothing for internet service until the EBB program runs out of money, likely by the end of this year. After his Spectrum new customer promotion expires, Derycke would likely have a higher internet bill than he started with from Frontier. 

A Frontier spokesperson told News10NBC Frontier might find a solution sooner than that:

“While a limited number of customers have a grandfathered Frontier product that is not eligible for the Emergency Broadband benefit, we are committed to transitioning these customers to comparable eligible offerings so they can receive the financial benefits. Frontier is working closing with our customer to resolve the situation.”

Such limitations on the EBB program do not come from the federal government. Internet providers voluntarily participate in the EBB program, and can set whatever restrictions, terms, and conditions they would like to qualify.

WHEC-TV in Rochester, N.Y. reports some Frontier customers with legacy DSL internet service may find themselves locked out of the Biden Administration’s internet benefit program. (3:20)

Frontier Admits the DSL Service it Sells is Not High-Speed Broadband Service

Frontier Communications told a federal court judge last week that the DSL service it sells across much of its service area in New York State is not remotely “high-speed broadband service” and is not fit for purpose if New York’s Affordable Internet Law takes effect next week and requires Frontier to deliver at least 25/3 Mbps service to state residents.

“Simply put, Frontier New York’s DSL-based service is not a ‘high-speed broadband service’ within the meaning of the statute, and an unreasonable interpretation thereof could be read to mandate the massive efforts and expenditures that would be required to provide the high-speed service standards set forth in the [Affordable Internet] Statute,” Frontier wrote in a filing with the court.

New York’s Affordable Internet Law, now being challenged in federal court, would require internet service providers to deliver at least 25 Mbps broadband service for $15/month to low-income state residents.

Frontier fears that if that new law takes effect, it could face mandatory investments in the tens of millions to upgrade its dilapidated copper wire network across most of its service areas in New York. Frontier told the judge it cannot provide reliable service over its copper wire facilities even at 15 Mbps, and many addresses recently added to Frontier’s internet service area are only getting service at 10 Mbps.

“Any attempt to require the consistent delivery of 25 Mbps through copper loops would require different network architecture, new equipment at Frontier New York’s central offices, new equipment in the field, and alternative methods and procedures,” Frontier complained. “Any such changes would constitute a new service rather than an upgrade to Frontier New York’s existing DSL services. The extensive time, effort and  money required would require the reallocation of capital and resources that are focused on forward-looking projects rather than backward-looking technology.”

Frontier added that the state should look to other providers to deliver service that meets minimal qualifications for broadband — service it does not provide today to most of its New York customers.

“FCC data and mapping indicates that speeds equal to or exceeding 25 Mbps download and 3 Mbps upload through technologies such as cable, fiber, fixed wireless and satellite are available across the state,” Frontier wrote.

AT&T To Strand Some DSL Customers With Fixed Wireless; Rural Areas Unlikely to See Fiber Upgrades for Years

AT&T CEO John Stankey is still looking to wring costs out of the business, and the company’s rural landline customers are next to take the cut.

At this morning’s J.P. Morgan Technology, Media and Communications Conference for investors, Stankey said AT&T is considering mothballing landline facilities in rural parts of its service area and offer wireless service instead.

“We have a voice replacement service now, so that allows us to look at our options around the footprint […] and begin the work of starting to shed some of that footprint and reduce the number of square miles that have that fixed infrastructure in place [where] you’re never going to have an incentive to ultimately upgrade to fiber,” Stankey told investors, quickly correcting himself over use the word ‘never’ in favor of “the next several years.”

“The best way to serve them is with robust wireless infrastructure and stepped up investment in that case and we will do that,” he added.

AT&T has been testing fixed wireless replacement phone service in parts of the southern United States for several years, to very mixed reviews. In these trials, AT&T rural landline customers receive a wireless modem that connects with existing home phone lines. Internet service is provided over AT&T’s 4G LTE network.

Stankey

AT&T ceased marketing its DSL service last October, although some Stop the Cap! readers claim they still occasionally receive targeted invitations for DSL service in some areas. The company has allowed its current rural DSL customers to keep their service, but many don’t. The company lost almost 39,000 DSL customers in the first three months of this year, with so signs of stopping. Across AT&T’s landline footprint, which extends from the Great Lakes region to the South as far west as Texas and east to Florida, there are only about a half-million AT&T DSL customers remaining. Most of those customers keep the service because they have no other options.

If AT&T wins FCC approval to decommission its wired network in rural areas where it has no plans to provide fiber to the home service, customers will lose traditional landline phone service and DSL.

Stankey said any serious effort in that direction is unlikely to begin until 2023, largely because AT&T will not make the investments to bolster its rural wireless infrastructure until then.

The CEO also foreshadowed no immediate plans to follow Verizon into the 5G wireless home internet business. In fact, Stankey admitted AT&T’s network is likely inadequate to support the data demands of home broadband customers.

That leaves rural customers in AT&T’s service areas with no hope of high-speed upgrades unless a community broadband provider launches or a cable operator agrees to wire rural areas. There are still questions about the capacity next generation satellite internet service will have in rural areas and whether service will be adequate to meet today’s data demands.

AT&T’s customers in urban and major suburban areas have a brighter future, however. Stankey told investors AT&T will expand its fiber to the home service to another three million households in 2021 and at least four million more in 2022. Overall, AT&T plans to provide fiber service to around 30 million homes and businesses in its wireline service area. If adequate returns on investment can be realized, along with reduced upgrade costs to reach each home, Stankey suggested another 10 million customer locations could one day see fiber service as well.

$50 Emergency Broadband Benefit Is A Windfall for Telecom Companies, a Headache for Consumers

Confusion, frustration, and fine print are all a part of the deal signing up for the $50 Emergency Broadband Benefit, customers complain.

The Biden Administration’s efforts to help economically challenged Americans with their broadband bills is actually a windfall for some of the nation’s largest telecommunications companies, which will pocket the money earned while forcing some customers off discounted promotional and legacy plans they claim do not qualify for bill relief.

The Emergency Broadband Benefit (EBB), rushed through in the early days of the new administration, is a $3.2 billion program that will offer qualifying consumers $50 off their monthly internet bill, at least until this fall when the money funding the program is expected to run out. Internet service provider participation is voluntary, but with billions of free money to be collected, most cable and phone companies are on board with the program. In fact, several are using the new benefit to earn even more money, by writing program rules that cynically exploit their income-challenged customers.

To qualify for the benefit, an individual is eligible if one member of the household:

  • Is a participant in one of the qualifying Lifeline programs: Medicaid, SNAP, SSI, FPHA, Veterans and Survivors Pension Benefit;
  • Is a resident on a Tribal reservation and participates in one of the following programs: Bureau of Indian Affairs general assistance; Tribally administered Temporary Assistance for Needy Families (Tribal TANF); Head Start (only those households meeting its income qualifying standard); or the Food Distribution Program on Indian Reservations (FDPIR);
  • Has applied for and been approved to participate in the National School Lunch Program: receives benefits under the free and reduced-price school lunch program or the school breakfast program, including through the USDA Community Eligibility Provision;
  • Has gross household income at or below 135% of the federal poverty guidelines;
  • Received a Federal Pell Grant during the current award year;
  • Experienced a substantial loss of income since February 29, 2020, and the household had a total income in 2020 below $99,000 for single filers and $198,000 for joint filers. This includes those who are unemployed or experienced unemployment in 2020 and/or were furloughed.

Stop the Cap! has received a few dozen letters from consumers that thought qualifying under the ‘substantial loss of income’ condition would be easy. Instead, they are sharing horror stories about providers unilaterally rejecting their applications, quietly canceling promotional packages, forcing some off less expensive, grandfathered service packages no longer being sold, or requiring customers to upgrade to more costly packages that ultimately left them with a bigger bill than they started with.

In some cases, poor training of customer service representatives seems to be the biggest impediment between you and a cheaper monthly bill. Some companies, including Sparklight, did not seem to even be aware of the highly publicized program. Others, notably Charter and Comcast, gave different answers depending on the representative you reach.

The most cynical provider of them all, however, is Verizon. No ISP makes participation in the EBB program more difficult. The phone company dominates as the largest wireline phone company in the northeast and Mid-Atlantic states and Verizon Wireless is one of the three major wireless carriers. It appears to be using the EBB as a marketing opportunity to upsell customers or drive them off older legacy plans that cost less, even if that is the only plan available.

“Verizon told me flat out ‘no’ that DSL customers cannot receive the $50 discount,” said Ted Rogers. Verizon is his only option for internet service, and only barely so. “We get about 6 Mbps from Verizon, no cell signals at all, and cable internet is just a dream. We live almost a mile from the nearest neighbor.”

Rogers lost his job as a result of the pandemic and is now working two part-time jobs to make ends meet. He told us the broadband benefit would be nice, but in the end is not worth fighting the phone company to get.

“You really have nowhere to go when they reject you, because the program is voluntary,” Rogers told us. “The FCC just passes the complaint back to Verizon and the PSC says it does not regulate internet service.”

Collect the $50, and then even more by forcing customers to switch to more expensive service plans.

Early FiOS customers who signed up for plans they have kept for years are also running straight into a firm “no” from Verizon. The Washington Post shared the stories of several Verizon fiber customers who were told they must upgrade to a more costly plan to qualify for the $50 discount. One customer in Massachusetts would have to give up his internet-only plan costing $62 for basically the same service under a different name — for $79 a month. While the $50 discount will make his internet bill much lower through the summer, when funds run out, he will end up paying $17 more a month indefinitely.

A Virginia customer was told she would have to walk away from her current Verizon internet plan costing $79 a month and switch to a new one for $95 a month, just to get a $50 discount over the next 3-6 months. That is a $16 more a month. In Pennsylvania, a Verizon customer was told she could not get the $50 a month broadband benefit unless she signed up for a costlier TV package and start renting some set top equipment as well. Her bill, after the EBB benefit expires, will be “at least $50 a month higher.”

“In my case, it seems like EBB only benefits Verizon,” she told the Post.

Unlike most telecom companies that claim these kinds of stories are simple misunderstandings or confusion on the part of their customer service team, Verizon spokesman Alex Lawson stepped up to boldly confirm that yes, indeed, the $50 benefit was only good on “qualifying plans.” For everyone else (our phrase): tough luck. But Lawson claims these newer plans allow customers to drop home phone service and typically save customers money. But not always, especially on legacy plans that include all the services a customer wants and special promotional packages which are lost when customers switch plans.

For the record, Verizon limits EBB benefits to these service plans. Notice DSL is excluded and prepaid wireless customers have to speak to a representative to find out if they can qualify:

Mobile:

Verizon Mix & Match Unlimited
Start Unlimited
Play More Unlimited
Do More Unlimited
Get More Unlimited
Above Unlimited
Beyond Unlimited
Go Unlimited (Some Go plans may not be eligible- inquire with rep.)
Standalone Mobile Hotspot plans
Unlimited and Unlimited Plus plans (Standalone mobile hotspot service offerings are those without a smartphone line on the account).

Home:

Fios Mix & Match Internet, any speed
Verizon 5G Home Internet
Verizon LTE Home Internet

Comcast representatives offered a range of responses to customers inquiring about signing up for EBB.

“Talk to one representative, get one story, hang up and call back and you get a completely different story,” said Sha’qwanda, a Comcast customer in Baltimore. “They told me I don’t qualify because I am 15 days late on my bill, then another person told me the plan was only for people on Medicaid, then another person told me I would have to give up my promotion plan they rate locked for a year. My bill would have gone up $54 a month. I can’t afford that. Who is really getting rich here?”

A Philadelphia customer told us Comcast completely messed up their account trying to apply the benefit, canceling their services and charging them for unreturned equipment.

“We lost service the following morning,” the customer wrote us, wishing to remain anonymous. “When we called up, the representative couldn’t figure out what happened, except he saw in the notes we were signed up for EBB, then the account was closed. Our final bill was over $400.”

The Xfinity social media account reached out to us earlier today to clear up the misunderstanding.

If you are a Comcast customer and are having trouble enrolling in EBB, we suggest you tweet a message to @Xfinity and get assistance. We suspect the problem here is insufficient training of customer service representatives to manage enrollments properly.

Charter/Spectrum is using the EBB program as a pry lever to push stubborn customers still holding on to legacy Time Warner Cable or Bright House service plans to switch to Spectrum internet plans and pricing. If you do not make the switch, you won’t qualify for EBB benefits. This is a choice by Charter management, not a limitation imposed by their billing system. Some customers on other legacy plans were also told they do not qualify.

“I am still a subscriber of New York’s Everyday Low Priced Internet service that used to be $15 a month. They have raised the price since, but also effectively jailed me by saying I have to abandon this plan if I want to get the $50 a month off my internet bill,” said Jay, a customer in New York City. “I can never go back either they tell me. Who wrote the rules for this program? The cable companies are using this to force people like me into upgrades I do not want and cannot afford. It’s scandalous.”

Another customer wishing to remain anonymous noted the same month EBB became available, Charter announced rate increases on equipment rentals and the Broadcast TV Fee paid by cable television customers.

“They will be back to raise internet prices again soon, I am sure,” the customer predicted.

AT&T, not to be left behind, also insists that customers choose from a limited menu of premium price plans and can never return to the plan they gave up. Even worse, customers complain you have to call to enroll, and the lines are jammed:

“I waited an hour on hold and then AT&T hung up on me twice,” said Kate Derry from Chicago. “It’s busy signals or waiting on hold forever. It’s like calling the unemployment office during the pandemic. AT&T has decided it should not be easy to enroll in this and I wonder how many people just give up.”

Jon, an AT&T Fiber customer in Dallas seems to agree.

“I finally got through at around 8am Texas time and listened to a representative fumble their way through disclaimers and conditions,” Jon told Stop the Cap! “Several times she had to put her hand over the microphone and ask her supervisor for help. It took an hour to get everything set up, not including the time needed to assemble the qualifying documentation. I really doubt many people are going to go through all this for a few months of savings. There is no excuse for this not to be available for online enrollment.”

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