A well-coordinated campaign to manufacture news of a phony cyberattack and give false information to the press to explain why the FCC’s electronic comment system crashed while news of net neutrality went viral has been exposed.

Internal agency emails reviewed by Gizmodo show a clear intention by some agency officials to deceive the media and the public about the nature of serious outages in the regulator’s electronic public comment system during high profile coverage of net neutrality, blaming the outages on an organized distributed denial of service (DDOS) attack that appears to have never happened.

On the night of May 7, 2017, John Oliver did a segment about net neutrality on his HBO show Last Week Tonight. At the end of his piece, he urged viewers to send comments to the FCC in support of net neutrality. It was the second time Oliver’s viewers brought the FCC’s electronic comments system to its knees. After intense demand effectively locked up the system after Oliver discussed net neutrality in 2014, the FCC promised to improve the commenting system to accommodate more traffic. FCC chairman Thomas Wheeler said in 2014 the downtime could be attributed to massive interest in the issue of internet freedom from ordinary Americans.

But three years later, a new administration hostile to net neutrality and a new FCC chairman had a different story about just how interested Americans really were. Wheeler’s story was replaced by Ajit Pai’s claims that real people are not that interested in net neutrality and that the downtime, as well as what he calls “fake comments” left on the system, are the result of nefarious deeds by an unknown party or parties. Pai and his staffers have systematically attempted to de-legitimize and gaslight supporters of net neutrality. In condescending tones, Pai and his allies claimed ordinary Americans were hoodwinked into supporting net neutrality by radical internet groups that have managed to fool them. By also calling into question the legitimacy of millions of comments from net neutrality supporters, Pai and his industry friends have had an easier time decapitating net neutrality protections, despite their widespread popularity.

Gizmodo reports the FCC under Pai and the Trump Administration is extraordinarily secretive about the issue. The agency has refused to produce any credible evidence of a denial of service attack, even when members of the media have sued the agency for the information and members of Congress have demanded to see the evidence.

Gizmodo:

[I]n May 2017, under the Trump-appointed chairman, Ajit Pai, at least two FCC officials quietly pushed a fallacious account of the 2014 incident, attempting to persuade reporters that the comment system had long been the target of DDoS attacks. “There *was* a DDoS event right after the [John Oliver] video in 2014,” one official told reporters at FedScoop, according to emails reviewed by Gizmodo.

David Bray, who served as the FCC’s chief information officer from 2013 until June 2017, assured reporters in a series of off-the-record exchanges that a DDoS attack had occurred three years earlier. More shocking, however, is that Bray claimed Wheeler, the former FCC chairman, had covered it up.

According to emails from Bray to reporters, Wheeler was concerned that if the FCC publicly admitted there was an attack, it would likely incite “copycats.”

“That’s just flat out false,” said Gigi Sohn, former counselor to Chairman Wheeler. “We didn’t want to say it because Bray had no hard proof that it was a DDoS attack. Just like the second time.”

Bray’s exchanges with reporters, which took place via email, were obtained by American Oversight, a watchdog group, under the Freedom of Information Act (FOIA). Gizmodo reviewed the more than 1,300 pages of records last week.

Bray

Most of the claims about a nefarious (and convenient) cyberattack seem to have originated from Bray, the senior official responsible for maintaining the comment system. A subsequent rambling response to the Gizmodo piece written by Bray was posted this morning to Medium.

In it, Bray recasts himself as a victim of a tech reporter who never called him and the general nature of partisan politics in Washington. Bray repeatedly claimed he was nobily working tirelessly to make sure “actual people” could comment on the high-profile issue of net neutrality. Unfortunately, he offered no proof in the form of logs or contemporaneous e-mails or written memos to prove what could be a plausible alternative theory of the traffic jam (namely, a person or persons unknown wrote poorly developed scripts to automatically submit comments to the FCC’s electronic comment system that had the unintended side effect of hopelessly clogging it.) In Washington, staffers confronting a high-profile problem likely to be noticed by their employers and become the fodder of political debate have learned the habit of saving everything, if only to avoid the kind of “guilty until proven innocent” standard of partisan-influenced investigations. The controversy has now achieved exactly the kind of high-profile prominence staffers generally dread.

“I have seen no evidence of a DDoS attack on the FCC comment system,” FCC Commissioner Jessica Rosenworcel told Gizmodo, in a direct contradiction of Bray. “But I did see millions of Americans write in to the FCC to stop its misguided effort to roll back net neutrality. It’s time for the agency to own up to what really happened.”

FCC staffers under the current chairman have a track record of being combative and secretive. There have been occasions when Stop the Cap! has tangled with Matthew Berry, Ajit Pai’s chief of staff. Berry, and other staffers, have been willing to engage in hand-to-hand combat on Twitter and other forms of social media and pass around pro-industry talking points routinely condemning the Obama Administration and the FCC under Chairman Tom Wheeler, while generally supporting large telecom companies:

Looks like broadband providers’ capital investments substantially increased in 2017 after declining in 2015 and 2016. Reversing the failed policies of the prior FCC is having a positive impact, and we’re just getting started! https://t.co/N80UTSpxV5

— Matthew Berry (@matthewberryfcc) May 15, 2018

When not on Twitter, staffers like Bray often serve as off-the-record sources for news services like FedScoop, while also feeding talking points and fake details about the cyberattack-that-wasn’t to the Wall Street Journal. The resulting article proved particularly useful to Bray and the FCC, which used the published news story as ‘independent evidence’ from ‘a third party’ that the attacks were real.

As investigative reporters made it clear they were not going to let the story go, top officials at the FCC have since circled the wagons and have done everything possible to keep the story from leaking out. In the more than 1,300 emails obtained by American Oversight in May, the FCC redacted every internal communication about the 2017 “cyberattack” and how to handle it in the press, citing attorney-client communications or the catch-all “deliberative process privilege” — the favorite obstructive choice of secretive federal agencies looking for a way around Sunshine Laws by denying access to any request for communications involving “governmental decisions and [how] policies are formulated.”

Gizmodo points out they also redacted discussions among FCC staffers about how to characterize the “attack” in response to inquiries from Congress. They even redacted a publicly posted Politico newsletter in full.

“Some of these messages are probably correctly redacted, but avoiding potential embarrassment is not a legitimate reason for the government to conceal an email,” Austin Evers, American Oversight’s executive director, said. “We were skeptical of the FCC’s explanations about its online comment system issues last May, and it’s clear that we still don’t have the full story about what happened.”

Frontier Communications spent more time working on ways to keep Minnesota customers from turning up at upcoming public hearings to discuss their poor service than actually resolving those customers’ service troubles.

Minnesota has a big problem with Frontier. The company has been the subject of an unprecedented number of customer complaints and negative comments — 439 in just a five-week period from Feb. 12 – March 19, 2018 about poor service, repair crews that don’t show up, woefully inadequate internet service, poor billing and customer service practices, and false advertising. As a result, the Minnesota Public Utilities Commission (PUC) launched an investigation into Frontier’s service performance in the state (Note: most links in this article will require a free account at the Minnesota Department of Commerce to read. Register here.), which is about the same time Frontier’s top executives in the state began a campaign of damage control focused primarily on keeping internet complaints out of the public record.

The complaints, summarized below by the Minnesota PUC, are familiar to many Frontier Communications customers around the country:

Some parties allege being without telephone service for about a week’s time on multiple occasions. Such instances resulted in customers being unable to access 911 or connect medical devices dependent on land telephone lines. Missed incoming calls, noise on phone lines and other phone quality complaints are not infrequent. Nearly all comments mention that they are being charged for service product(s) not being provided as promised, often with related billing and cancellation disputes as a consequence.

Nearly all parties complain that Frontier’s customer service representatives provide inconsistent information on available service in the customer’s area and its price. Many report routinely being sold higher level (more costly) service or hardware as a remedy for service problems that remain or return after the recommended solution is in place. Customers often note being told later that the upgraded service they were sold is not available at their location.

Many complaints concern home service visits that require subsequent visits to correct or augment earlier actions, often with charges but no resulting remedy. Often customers say they experience long delays in getting repairs scheduled, must take lengthy time from work to await for service representatives to arrive only to find problems cannot be remedied. Missed service appointments, mistaken disconnections, unrequested service additions, installation and wiring errors are common complaints.

Customers frequently report discovering they are allegedly on a contract with penalties for ending service early even if they had explicitly refused to accept long term contracts. Apparently such contracts automatically renew without customer notice upon payment of the first month of the new period. Customers indicate being warned of damaging credit reports in addition to accumulating penalties if they do not pay disputed bills. Billing disputes also include promised discounts not being provided, penalties accumulating on disputed amounts, and checks being sent but not being credited to accounts.

Based on decades of experience, the PUC staff knew trouble when they saw it, and found the complaints about Frontier credible and serious.

“The total number of comments and complaints, often with detailed documentation, appears to indicate that widespread problems with service quality, customer service and billing exist,” PUC staffers wrote. “Customers express the very highest levels of frustration over service quality and over their interactions with Frontier representatives. Customers express despair over their billing and lack of alternatives. Finally, they express outright ‘gratitude for the hope that someone might come to their aid.”

Customers hoping for rescue discovered Frontier’s legal team instead, on a mission to do everything possible to limit the scope of the state’s investigation and discourage public participation by suggesting customers with internet complaints would not be welcome at the hearings.

Frontier, joined by fellow independent phone company CenturyLink, immediately realized the implications of holding public hearings about the performance of their DSL service in Minnesota. Both companies likely receive an even larger number of service complaints than regulators do, and here is just a sampling:

‘If you don’t like our service in the countryside, move to town!’

Graham Adams: “We have had Frontier for a little over 2 years and have had nothing but problems. Internet is constantly out for days sometimes weeks at a time. I think it’s preposterous they can charge me $42 a month for 5 Mbps service that is inconsistent at best. Because we live outside city limits Frontier is the only internet service available.”

Christopher Krolak:  “I have been a Frontier Communications customer for about 4.5 years. I live in an area where there isn’t a lot of competition for high speed internet. I pay $30 per month for “up to 6 Mbps” service but real world speeds are best case 2 Mbps and fall to 0.3 Mbps during peak times. When I’ve called about the large discrepancy between advertised speed and actual speed, Frontier has responded that the area I live in is only provisioned for about 2 Mbps speed and an infrastructure upgrade is required. Frontier is unwilling to give any timeline forecast for when such upgrade will be made.”

Sylvia Svihel: “We have been a customer of Frontier’s for 41 years as it has been the only land line in our area. Our phone, internet and Dish service are tied into the same package. The prices keep going up. We did upgrade our service for a faster speed but we see zero improvement on the speed…just an even higher bill. I have lost track of how many times we have contacted Frontier on lost service. They usually just say it’s the modem and to reboot it and everything will be OK. I reboot the modem, sometimes multiple times a day.”

Jay Johnson: “I have been a Frontier customer for internet for a long time. The service I pay for is “up to 6 Mbps” but I’d be lucky to get 1.2 Mbps. They have a monopoly in this part of Mille Lacs County. There are really no other options other than satellite or cellular and those are not really any better speed and certainly not price.”

Roger Wikstrom: “We have had Frontier service for 32 years. Beginning about 20 years ago we added internet service, which has always been unreliable. […]We complained many times and had dozens of service calls over the years. At one point, the technician told us we were out in the country, the brass at Frontier did not really care about our service, and that if we wanted good service from Frontier, we should move to town.”

Based on a growing record of complaints, the PUC sought to hold public hearings to gather more information from consumers and to better understand the problems being experienced by Frontier customers. Almost immediately, Frontier began to claim the complaints were few and far between, and most of the complaints seen on the record pertain to the company’s DSL internet service, which Frontier claims is not subject to oversight by the PUC and cannot be a subject on the agenda of the public hearings.

Frontier’s Lawyers: It would confuse customers and give them false hope if they believed the Commission can force Frontier to improve DSL service.

Frontier’s attorneys lecture the Minnesota Department of Commerce

Frontier’s attorneys have repeatedly objected to any investigation or hearings that cover anything beyond the performance of Frontier’s landline telephone service. Frontier was joined by CenturyLink, which also argues Minnesota no longer has any jurisdiction over broadband issues, noting a state court recently ruled telecommunications services are subject to state regulation and oversight, while “information services” like internet access are not.

Frontier was particularly irritated that the hearings could stray into an open mic session filled with consumers upset about Frontier’s DSL service. Unless customers were warned in advance the public meetings were not to include discussions about internet service, it “would create false expectations and confusion for customers.” In fact, if regulators permitted this, Frontier claims it would “violate federal law.”

“Holding public hearings directed to internet access service complaints would not be constructive because the Commission would be precluded from taking action concerning internet service rates or service quality using any information it may collect during the public hearings,” Frontier added.

Here is where the Republican-dominated FCC comes to the aid of Frontier and CenturyLink. At the insistence of FCC Chairman Ajit Pai, stripping away state oversight of poorly performing telecom companies was a key industry benefit gained with the implementation of Pai’s “Restoring Internet Freedom Order,” implemented on Jan. 8, 2018. That FCC Order swept away former FCC Chairman Thomas Wheeler’s favored classification of broadband as a “telecommunications service,” which is subject to oversight, and instead put it firmly back in unregulated territory as an “information service.” That proved helpful to CenturyLink’s argument:

In making its decision the FCC broadly preempted state regulation and decided that “regulation of broadband Internet access service should be governed principally by a uniform set of federal regulations, rather than by a patchwork that includes separate state and local requirements.” The FCC expressly preempted any ‘public utility-type’ regulations, . . . akin to those found in Title II of the Act and its implementing rules . . .”

Frontier’s lawyers made so much noise about the prospect of internet complaints being heard at public hearings, the Commission elected to allow Frontier to draft the public hearing notices that would be inserted into customer bills and published in newspapers around the state. The Commission also allowed Frontier to clarify the limits of the Commission’s jurisdiction over internet service — a decision it would soon regret.

Minnesota is unusual because it is served by dozens of smaller, typically independent telephone companies, which include Frontier and its subsidiary Citizens Telecommunications of Minnesota.

Give Frontier an inch, and they take a mile, according to some company critics who told Stop the Cap! were astonished on April 30th when Frontier shared its draft notice with the public. The Minnesota attorney general’s office politely characterized Frontier’s notice as a “very narrow reading of the Commission’s jurisdiction over internet service.”

Here it is, as originally proposed by Frontier in April:

The jurisdiction of the MPUC includes telephone services, but does not include Internet services or the speed or quality of access or connections to the Internet or the communications services, such as Voice Over IP, that are provided using only the Internet.

The attorney general’s office objected to Frontier’s characterization of VoIP phone service as completely unregulated. A subsequent proposed revision by Frontier was not welcomed by the attorney general’s office either:

The jurisdiction of the MPUC includes telephone services, but does not include Internet access services or the rates, speed, quality, or availability of Internet services.

After motions to reconsider, the Commission ultimately reversed its earlier decision allowing Frontier to write its own text:

While the Commission does not want to mislead the public into believing the Commission has jurisdiction over matters that are solely within the province of federal entities, neither does the Commission want to erroneously disavow any aspect of the jurisdiction it does have over the goods and services that Frontier provides to its Minnesota customers.

Given the tension between these two objectives—and the fact that this dispute is arising in the context of drafting the language of a public notice—the Commission will resolve this matter by simply eliminating the requirement that the notice address the topic of the Commission’s jurisdiction over aspects of internet services.

Frontier DSL in Watertown: “47 minutes to upload one small photo to Facebook.”

While Frontier argues about jurisdiction issues, customers like Dr. Kathleen McCann — a dentist serving rural Watertown Township in Carver County, share their stories about how inadequate internet access directly harms local communities, and in her case, her patients.

Dr. McCann

“Frontier Communications is my only option for internet,” McCann told regulators. “My internet service is worse than dial-up. I am charged for ‘DSL High Speed Broadband’ on my monthly bill, but my download speeds are only averaging 2 Mbps and the upload speeds average 0.28 Mbps. As a dentist, I am not able to email dental X-rays. It took me 47 minutes to upload one small photo to Facebook recently.”

McCann added what is even worse than her DSL speed is Frontier’s service. She claims there are “frequent drops” every day, and a technician from Frontier measured an average of 20 small service outages a day. One day her service dropped 400 times. Outages can last days.

“The most recent Frontier internet outage began March 3 and as of March 7, there are at least 27 homes in my neighborhood still without internet service,” McCann added. “This is unacceptable, especially since many of these 27 Frontier customers are running their businesses entirely from home. Calls to Frontier, when finally answered after sometimes 40 minutes on hold, are ineffective.”

Public meetings to discuss Frontier service are scheduled in these areas of Minnesota (exact locations to be determined):

• Ely: September 4, 2018, at 6:00 p.m.
• McGregor: September 5, 2018, at 6:00 p.m.
• Wyoming: September 12, 2018, at 6:00 p.m.
• Slayton: September 25, 2018, at 6:00 p.m.
• Lakeville: September 26, 2018, at 2:00 p.m. and 6:00 p.m.

Last week, AT&T announced its intention to abandon an appeal of a decision of the 9th Circuit Court of Appeals granting the Federal Trade Commission the right to continue its lawsuit against AT&T for speed throttling its “unlimited data” wireless customers.

The notification came in a surprising four sentence notice filed with the court May 30:

At the May 10, 2018 case management conference in this matter, AT&T informed the Court that it expected at that time to request a 60-day extension from the Supreme Court of the deadline to file a petition for certiorari. See Audio Recording of May 10, 2018 Hr’g at 7:22. Since that hearing, AT&T has decided not to request such an extension and not to file a petition for certiorari to review the decision of the en banc Ninth Circuit, see 883 F.3d 848 (9th Cir. 2018). The deadline to file a petition for certiorari lapsed on May 29, 2018.

AT&T spokesman Mike Balmoris later told reporters: “We have decided not to seek review by the Supreme Court, to focus instead on negotiating a fair resolution of the case with the Federal Trade Commission.”

AT&T’s sudden change of heart surprised many observers, including some closely following the case at the 9th Circuit, which has held regular court supervised meetings to prepare for the widely expected Supreme Court challenge. AT&T notified the court in early May it would file its appeal as soon as May 29, and the court was preparing new discovery guidelines and deadlines between the two parties as the case proceeded.

AT&T had achieved a major victory in 2017 when a three-judge panel at the Ninth Circuit agreed with AT&T’s argument that the FTC had no jurisdiction over the company because part of its business includes traditional telephone service, something defined in law as being regulated exclusively by the FCC. At the same time, the FCC did not seem to have jurisdiction either, because wireless data throttling took place over a network not subject to common carrier service regulations.

Ninth Circuit Court of Appeals — San Francisco.

The Ninth Circuit then agreed to hear the case once again, this time “en banc” — meaning the full court would re-hear the case instead of a limited panel of three judges. In February, the court unanimously found the FTC did have regulatory jurisdiction over AT&T after all:

We conclude that the exemption in Section 5 of the FTC Act – “except . . . common carriers subject to the Acts to regulate commerce” – bars the FTC from regulating “common carriers” only to the extent that they engage in common-carriage activity. By extension, this interpretation means that the FTC may regulate common carriers’ non-common-carriage activities.

[…] This statutory interpretation also accords with common sense. The FTC is the leading federal consumer protection agency and, for many decades, has been the chief federal agency on privacy policy and enforcement. Permitting the FTC to oversee unfair and deceptive non-common-carriage practices of telecommunications companies has practical ramifications. New technologies have spawned new regulatory challenges. A phone company is no longer just a phone company. The transformation of information services and the ubiquity of digital technology mean that telecommunications operators have expanded into website operation, video distribution, news and entertainment production, interactive entertainment services and devices, home security and more. Reaffirming FTC jurisdiction over activities that fall outside of common-carrier services avoids regulatory gaps and provides consistency and predictability in regulatory enforcement.

In short, AT&T’s “get out of regulatory oversight free”-card was revoked, much to its consternation. The company promised a fast appeal to the Supreme Court. The case concerned a number of observers, not the least of which was the Federal Communications Commission, which has been so concerned about AT&T’s novel argument to escape regulation, it filed a brief supporting the FTC with the court:

If the en banc Court were to adopt AT&T’s position that the FTC Act’s common-carrier exception is “status-based” rather than “activity-based,” contrary to the reasoned analysis of the district court below, the fact that AT&T provides traditional common-carrier voice telephone service could potentially immunize the company from any FTC oversight of its noncommon-carrier offerings, even when the FCC lacks authority over those offerings—creating a potentially substantial regulatory gap where neither the FTC nor the FCC has regulatory authority.

That approach is contrary to a common-sense reading of the relevant statutes and could weaken or eliminate important consumer protections. While AT&T may prefer to offer services in a regulatory no man’s land, the law does not dance to AT&T’s whims.

While AT&T publicly expressed confidence about its appeal right up to the day it abandoned it, minutes from the Ninth Circuit trial scheduling and progress conferences reveal AT&T and the FTC were already privately talking with each other to avoid further litigation:

“Parties reported that they are conducting settlement negotiations.”

All observers agree a successful appeal by AT&T to the Supreme Court could have put telecommunications laws and regulations into chaos. Had AT&T successfully restored the three-judge panel’s decision, any telecommunications company could walk away with impunity from FCC and FTC oversight by simply starting a small telephone company serving just a handful of customers. Just one product or service subject to common carrier rules could effectively immunize a phone or cable company from regulations indefinitely, or until Congress changed the law to close that loophole.

Some observers predict AT&T’s decision not to appeal is a prelude to an imminent, favorable permanent settlement of the four-year old case. The evidence strongly suggests AT&T will likely escape any significant monetary punishment, and affected consumers may not get significant (if any) compensation for AT&T’s prior acts:

• The FCC shows no sign of following through on a 2015 press release threatening AT&T with $100 million in fines for its failure to properly disclose its speed throttling policy arbitrarily imposed on unlimited data customers who exceeded a company-defined amount of data usage. At the time the press release was issued, there were three Democrats and two Republicans serving on the Commission. Both of those Republicans opposed the fine and are now part of the Republican majority at the FCC under the Trump Administration. The FCC admitted in court papers that no further action has been taken to fine AT&T. The case was largely left in the hands of the FTC.
• During the Obama Administration, the FTC claimed it was interested in pursuing refunds for affected customers and punishing AT&T for its throttling practices. Last week, Andrew Smith, the FTC’s new director of the Consumer Protection Bureau told an audience today’s priority it to monitor providers over traffic throttling and making sure those practices are transparently disclosed to customers. “We’re planning to examine current practices in the industry,” Smith said. “We’re looking for areas in which ISPs may be engaged in unfair or deceptive practices, and we will bring enforcement action as appropriate.”

Smith

For AT&T, the decision to drop its appeal may have come down to whether it preferred to temporarily escape regulatory oversight until an enraged Congress passed new laws to put AT&T and other telecom companies back under oversight, or living with the kind of “light-to-little touch” regulatory approach favored by the Trump Administration and its regulatory agencies. Whatever deal emerges between AT&T and the Trump Administration’s FTC will likely be “win-win” for the company and the regulator, with consumers offered only token relief.

The goals likely to be achieved in any settlement:

• AT&T would clearly like to avoid a $100 million fine and other enforcement actions, so agreeing to ease throttling (something it has done already) and better disclose the practice would hardly create a problem for the company, especially if fines are dropped as a result.
• The FCC’s new “net neutrality” policy depends almost entirely on effectively abdicating oversight responsibility to the FTC, something embarrassing and hard to justify if AT&T managed to permanently bar the agency from regulating the company.
• The FTC can claim victory by telling consumers they are watching ISPs for undisclosed and unwarranted throttling, without opening up new legal challenges by outright banning of the practice, heavily fining violators, or collecting damages on behalf of customers victimized by prior bad acts.

Among the major wireless companies with spectrum holdings worth billions, few would suspect that the fifth largest (behind Sprint, AT&T, Verizon, and T-Mobile) is the satellite television company Dish Networks.

After spending nearly $20 billion over the last ten years acquiring nearly 95 MHz of extremely valuable low and mid-band spectrum in markets across the United States, Dish is the largest wireless company that isn’t actually providing wireless service. Critics have questioned whether Dish co-founder Charlie Ergen was ever really interested in getting into the wireless business when he could make an even bigger killing warehousing spectrum until it grows in value and can be profitably sold to someone else. One Wall Street analyst thinks there is a strong case for exactly that. Cowen and Company estimates Dish’s holdings are now worth $30.2 billion — a $10 billion profit possible from keeping spectrum off the market until a buyer is willing to make an offer Dish cannot refuse.

Unfortunately for Ergen, spectrum is public property and ultimate ownership rights can never be sold or transferred. Instead, the FCC licenses companies to use the public airwaves, and has provisions to take them back if a company does not put that spectrum to good use. For Dish Networks, the first important deadline is March 2020, by which time the FCC expects Dish to achieve at least 70% market coverage of its 700 MHz “E-Block” and 2000-2020/2180-2200 MHz AWS-4 licenses.

Dish’s “E-Block” spectrum was formerly known as UHF channel 56. Dish has already begun testing the next-generation TV standard ATSC 3.0 on its E-Block spectrum in Dallas, as part of a joint venture with TV station owners Sinclair, Nexstar, and Univision. Dish proposed to use this spectrum, which covers 95% of the United States, as a potential tool for broadcasters. Among the services Dish could offer are broadcast data applications made possible with the ATSC 3.0 standard.

Because time and money is on the line, Dish needs to either build its network quickly or sell/lease its spectrum to other companies before facing possible spectrum forfeiture in less than two years. Analysts say one of the cheapest and easiest ways of placating the FCC is to deploy a modest, narrowband wireless network designed for machine-to-machine communications. These networks rely on short bursts of data to communicate information. Possible applications include exchanging irrigation and crop data collected from wireless sensors and various remote weather and climate measurement tools.

Coincidentally, that is exactly the kind of network Ergen initially envisions, largely operating on the sparsely used AWS bands. Officially called “NB-IoT” in wireless industry parlance, the ‘narrowband Internet of Things’ network would be the first chapter of Dish’s wireless story. It’s a network done on the cheap — constructed with a relatively low investment of $500 million to $1 billion through 2020, adequate enough to keep the FCC off Dish’s back.

Ergen reports the radios have been ordered and in a sign of serious intent, Dish has now signed master lease agreements with cell tower companies that will allow Dish to place its transmission equipment on tens of thousands of cell towers around the country. The company has also hired experts in tower permitting and network design and planning. Those contracts are an important indicator for some skeptics on Wall Street who believed Ergen would not show seriousness of intent until he signed paid, binding commitments to begin network buildout.

Ergen would disagree that Dish has been foot-dragging its wireless network deployment, despite a decade of accumulating wireless spectrum that has gone unused.

“It’s all about timing; too early you are roadkill, if you get it just right you have a chance,” Ergen said. “We missed the 4G shift because of the regulatory reasons. The next big paradigm shift is 5G.”

Ergen

Unfortunately for Ergen, he will be late to that paradigm shift, admitting his dream of a national 5G network isn’t possible right now.

“We’re […] going to spend at least $10 billion or more on a 5G network,” Ergen said, while also admitting, “we don’t have that kind of capital on our balance sheet today.”

Ergen promised that sometime in the future, Dish will begin a “second phase” that will “build a complete 5G network.” But Ergen’s vision of 5G is somewhat different from Verizon and AT&T, which are focused on the consumer and business voice and data markets. Ergen envisions a robust 5G network designed to support IoT applications like smart cities, artificial intelligence, and autonomous vehicles, and does not seem interested launching a fifth national cell provider.

Ergen quit in December 2017 as CEO of Dish’s aging satellite TV business to refocus on Dish’s mobile future, and to recast the venture as a glorified startup, much like his early days in the home satellite television business where he got into the business manufacturing 10-foot C-band satellite dishes for consumers and then sold the programming to watch on those dishes. From money earned in that business, Ergen launched Dish Networks, which relies on today’s familiar small satellite dishes and competes with DirecTV.

Ergen’s satellite TV venture only had to compete with one other satellite provider. His wireless network will have to compete with at least four established national wireless companies, plus emerging competition from the cable industry and regional cellular providers. Ergen tried to turn that obvious business challenge into an opportunity:

“We have two disadvantages; We don’t [have many] customers and we are not as knowledgeable as other people in the business, but we don’t have the legacy of 2G, 3G, 4G networks,” Ergen said. “We have a clean sheet of paper with 5G. It reminds me of 1990 when we decided to reinvent ourselves from the big dish business to small dish. It took five years to design and build that system with not one penny of revenue, and we obsoleted the business we were in. When we got into satellites, we didn’t know anything about it, but neither did anyone else. It is the same with 5G/IoT. We are not the world’s experts, but neither is anyone else.”

What Ergen lacks in experience he makes up for in enthusiasm, laying out plans for Dish’s wireless future. By the time he activates 5G service, Dish expects to use its combined 95 MHz of spectrum in the 600 MHz and 2 GHz range for that network. That will take until at least July 2020, because many of the 600 MHz frequencies he needs are still occupied by UHF television stations that are in the process of migrating to a more compact UHF band.

Dish has spectrum holdings that reach almost every corner in the U.S.

Ergen may also consider acquiring additional millimeter wave spectrum if he deploys small cell technology. He has even decided to keep small cell and larger traditional “macrocells” found on traditional cell towers on different frequencies, claiming sharing the frequencies would create interference issues.

Ergen also hopes to convince the FCC to repurpose little-known Multichannel Video Distribution and Data Service (MVDDS) spectrum located between 12.2-12.7 GHz for 5G wireless applications. That solid block of 500 MHz of spectrum could be an important asset to power small cell 5G networks, because it can support faster speeds than the typical smaller blocks of frequencies most companies control. MVDDS also lacks a significant constituency to protect it, having been woefully underutilized in the United States. Only tiny Cibola Wireless, an ISP in Albuquerque, N.M., licenses MVDDS technology for its wireless internet service, selling Albuquerque residents up to 50 Mbps speed for $79.99 a month. Users claim the service does not suffer the latency problems of traditional satellite internet access, but can still slow down if too many users are online at the same time.

Back in 2010, MVDDS technology was seen as a potential competitor to companies like Dish and DirecTV, as well as satellite internet providers which share similar spectrum. Like satellite internet, MVDDS can transmit and receive data over a small dish. But instead of pointing it to a satellite 44,000 miles away, MVDDS systems target a ground-based transmission tower much closer nearby. The technology never attracted much attention, and will now likely be displaced by 5G in the United States, although it has done modestly better abroad, serving a limited customer base in the United Arab Emirates, Ireland, France, Vietnam, Greenland and Serbia.

The Senate approved a resolution on a largely party line vote Wednesday that sends a symbolic message to the FCC it erred when it voted to repeal net neutrality.

The final vote pitted all 49 Democrats against all but three Senate Republicans to condemn the FCC’s decision to rollback the rules, scheduled to take effect in June. The three Republicans that joined the Democrats in favor of preserving net neutrality were Susan Collins from Maine, Lisa Murkowski from Alaska, and John Kennedy from Louisiana — the latter two a surprise.

“Today is a monumental day,” said Sen. Edward Markey (D-Mass.) during debate over the resolution. “Today we show the American people who sides with them, and who sides with the powerful special interests and corporate donors who are thriving under this administration.”

The measure faces a much tougher fight in the Republican-dominated House, where it may have trouble even coming up for a vote.

Using the Congressional Review Act, a law that permits Congress to revisit — and reject — decisions by federal agencies within 60 “session days” of their approval, Democrats drew a clear line in favor of net neutrality, which may become an issue in the midterm elections if the Republican-controlled House refuses to bring the measure up for a vote. If the measure passes the House, it will require the signature of President Trump to take effect. That may be unlikely, considering the president once claimed net neutrality was a plot by the Obama Administration to gain control of the internet.

Kennedy explained his vote in favor of net neutrality as an issue of trust.

“You either trust your cable company or you don’t,” Kennedy explained. “If you trust your cable company, you won’t like my vote. Under the 2017 order, a cable company can censor, throttle, or employ fast lanes so long as it discloses. The response from the other side of that is, well, just switch cable companies. But 22% of Louisianans and 19% of all Americans have access to only one internet service provider that can provide the minimum FCC mandated speed. So what are they going to do?”

FCC Chairman Ajit Pai reiterated his belief net neutrality protections were not needed and would deter investment by cable and telephone companies in their networks, a claim hotly disputed by consumer groups that point to evidence investment rose even after net neutrality took effect.

The issue of keeping the internet free and open remains bipartisan, with wide percentages of Republicans and Democrats in favor of net neutrality. That may put Senate Republicans who voted against the measure and are up for re-election on the hot seat this fall.

NPR:

This issue doesn’t cut along clean party lines, said Steven Kull, who runs the Program for Public Consultation at the University of Maryland and has studied public attitudes on net neutrality. The program’s research has found that majorities of Americans support government-mandated net neutrality protections.

“People are on the Internet a lot and it’s a big part of their daily experience and the prospect that it will be changed in some fundamental way is disturbing to quite a lot of them,” Kull said.

Fear is a great motivator for voters. Senate Democrats believe their resolution that put every Democrat on record in support of net neutrality — and most Republicans on record against it — can turn what was once considered a wonk issue, into a wedge issue this November. “People underestimate the passion of Internet voters, at their peril. They are mad, and they want to know what they can do, and this vote will make things crystal clear,” he said.