The cable industry prepares for war over a watered-down set-top box reform proposal many companies initially supported.

You can’t please cable companies any of the time.

After months of an intense lobbying effort to kill Federal Communications Commission Chairman Thomas Wheeler’s set-top box reform proposal that would have created an open standard allowing manufacturers to compete for your box needs, the cable industry has declared war on the watered-down compromise released last week that many cable operators lobbied for as a suitable alternative.

“While we appreciate that Chairman Wheeler has abandoned his discredited proposal to break apart cable and satellite services, his latest tortured approach is equally flawed,” said Comcast’s vice president of government communications Sena Fitzmaurice in a statement. “He claims that his new proposal builds on the marketplace success of apps, but in reality, it would stop the apps revolution dead in its tracks by imposing an overly complicated government licensing regime and heavy-handed regulation in a fast-moving technological space. The Chairman’s new proposal also violates the Communications Act and exceeds the FCC’s authority.”

That’s a veiled threat Comcast may take the FCC to court if they proceed with the watered down reform policy now advocated by Chairman Wheeler.

Charter Communications, newly enlarged with Time Warner Cable and Bright House Networks in its family, also issued a statement claiming the FCC will ruin everything:

“Enabling consumers to use apps instead of set-top boxes may be a valid goal, but the marketplace is already delivering on the goal without overreaching government intervention. The FCC’s mandate threatens to bog down with regulations and bureaucracy the entire TV app market that consumers are increasingly looking to for innovation, choice and competition.”

Sensing blood in the regulatory waters, the pile on from Congress and programmers that depend on their relationships with large cable operators was inevitable and quick:

The top Democrat on the House Energy and Commerce Committee said Monday that he is doubtful.

Pallone

“While I commend Chairman Wheeler for working to solve this difficult issue, I’m concerned that this latest proposal will not work, particularly when it comes to licensing,” Rep. Frank Pallone (N.J.) said in a statement. “Ultimately, I’m skeptical that the revised plan will benefit consumers.”

[Editor’s Note: Federal Communications Commission chairman Thomas Wheeler today released a compromise proposal hoping to get the cost of set-top box equipment down for millions of Americans forced to lease equipment to watch cable television.

Wheeler originally proposed requiring an open standard for set-top box equipment that would open the market to competition by allowing manufacturers to directly sell equipment to consumers and compete for their business. Cable operators, programmers, and various special interest groups that depend on financial contributions from those operators immediately launched an unprecedented pushback claiming set-top box reform was racist, anti-minority, promoted copyright theft, and was illegal and unconstitutional. Small cable operators claimed they might be driven out of business, and programmers claimed companies like Google might fundamentally change the channel lineup on new equipment that would leave them in a disadvantaged position.

In fact, the hundreds of millions of dollars in annual revenue earned by cable operators charging the same price for equipment fresh out of the box or handed down in beat up condition to the fifth customer in eight years was more likely the driving factor.

Mr. Wheeler capitulated and released a more modest proposal promising cable operators would be forced to offer free “apps” for devices like Roku and Apple TV. But cable operators will likely own and manage those apps and have direct control of authentication methods and anti-piracy measures that are likely to be proprietary. Still, apps like TWC TV which covers Time Warner Cable’s lineup on devices like Roku have allowed consumers to ditch expensive set-top equipment and irritating Digital Adapters that don’t function well and have almost tripled in price since their introduction. Making sure these apps provide comparable functionality with set-top boxes and are released to a variety of devices will be key to whether Wheeler’s proposal, delivered in full below courtesy of the Los Angeles Times, has a measurable impact on cable bills.]

FCC chairman: Here are the new proposed rules for set-top boxes

There’s never been a better time to watch television in America. We have more options than ever, and, with so much competition for eyeballs, studios and artists keep raising the bar for quality content. But when it comes to the set-top-box that delivers our pay-TV subscriptions, we have essentially no options, creating headaches and costing us serious money in rental fees. That makes no sense, which is why I’m sharing a proposal with my fellow commissioners at the Federal Communications Commission to change the system.

Wheeler’s compromise

Ninety-nine percent of pay-TV subscribers currently lease set-top boxes from their cable, satellite or telecommunications provider, paying an average of $231 a year for the privilege, according to a recent analysis. The collective tab is $20 billion annually in rental fees. In a recent study, 84% of consumers felt their cable bill was too high. What they may not realize is that every bill includes an add-on fee for their set-top boxes. We keep paying these charges even after the cost of the box has been recovered because we have no meaningful alternative.

Pay-TV providers will be required to provide apps — free of charge — that consumers can download to the device of their choosing.
Earlier this year, the FCC launched a process to unlock the set-top-box marketplace. We were motivated by the desire to give consumers relief, but we were also mandated to take action by Congress and the law, which says that consumers should be able to choose their preferred device to access pay-TV programming.
Over the past seven months, the Commission conducted an open proceeding where we heard from pay-TV providers, programmers, device and software manufacturers, consumers groups, and, most important, the American people. We listened.

Now, I am proposing rules that would end the set-top-box stranglehold. If adopted, consumers will no longer have to rent a set-top box, month after month. Instead, pay-TV providers will be required to provide apps – free of charge– that consumers can download to the device of their choosing to access all the programming and features they already paid for.

If you want to watch Comcast’s content through your Apple TV or Roku, you can. If you want to watch DirectTV’s offerings through your Xbox, you can. If you want to pipe Verizon’s service directly to your smart TV, you can. And if you want to watch your current pay-TV package on your current set-top box, you can do that, too. The choice is yours. No longer will you be forced to rent set-top boxes from your pay-TV provider.

One of the biggest benefits consumers will see is integrated search. The rules would require all pay-TV providers to enable the ability for consumers to search for pay-TV content alongside other sources of content. Just type in the name of a movie, and a list will come up with all the places it is scheduled for broadcast and where it can be streamed (like Amazon Prime or Hulu).

Integrated search also means expanded access to programming created by independent and diverse voices on the same platform as your pay-TV providers. Consumers will more easily find content even if it’s not on the pay-TV service to which they subscribe.

These rules will open the door for innovation, spurring new apps and devices, giving consumers even more choice and user control.

While our primary focus during this proceeding was to promote consumer choice and fulfill our congressional mandate, we recognize that protecting the legitimate copyright interests of content creators is also key to serving the public interest. To ensure that all copyright and licensing agreements will remain intact, the delivery of pay-TV programming will continue to be overseen by pay-TV providers from end-to-end. The proposed rules also maintain important protections regarding emergency alerting, accessibility and privacy.

Large pay-TV providers, which serve more than 90% of subscribers, will have two years to fully implement the new requirements.  Medium-sized providers will have an additional two years to comply, and the smallest providers would be exempt.

This is a golden era for watching television and video. By empowering consumers to access their content on their terms, it’s about to get cheaper — and even better.

Only half of CenturyLink’s customers in well-populated areas formerly served by Qwest can buy broadband service at 40Mbps or higher, while rural customers fare considerably worse with less than 25% able to get High Speed Internet at those speeds.

Customers have noticed and at least 65,000 canceled their broadband service with the phone company in the second quarter of this year, most presumably switching to their area’s cable operator.

“CenturyLink is by far the most abysmal telephone company I’ve ever had to deal with and I’m 63 years old,” shares Glen Canby in Arizona. Canby is a retired telephone company engineer that spent 40 years with a larger phone company serving the midwestern U.S.  “Their reviews online echo my own experiences, which have ranged from being quoted one price while being billed another, being locked into a term contract you didn’t ask for, and getting only a fraction of the speed they claim to sell.”

Canby is counted as one of CenturyLink’s 40Mbps-qualified customers, yet he actually receives less than 6Mbps service.

But that isn’t what CenturyLink tells the Federal Communications Commission. In a semi-annual broadband deployment report, the company claimed 51 percent of their customers in urban and suburban former Qwest service areas can subscribe to 40Mbps DSL or higher. But whether a customer is “qualified” to buy 40Mbps service is not the same as actually getting the speeds the company markets.

CenturyLink attempts to cover their claims with fine print attached to their FCC submission: “The numbers shown in this chart reflect the percentages of households served by DSLAMs that are capable of providing the specified broadband speeds.” (A DSLAM is a network device typically used to extend faster DSL speeds to customers by reducing the amount of copper wiring between the telephone company’s central office and the customer’s home. Customers in a neighborhood typically share space on a DSLAM, in effect sharing a single connection back to the phone company.)

“That’s clever of them, because of course the DSLAM is just one link in the chain that ends with the ‘last mile’ between that equipment and my home, and that is where CenturyLink’s phone plant is at its weakest,” Canby writes. “I spent 20 years at a phone company dealing with last-mile DSL speed issues, so they cannot fool me.”

Canby blames the condition of CenturyLink’s infrastructure between the DSLAM serving him and his home for the problems, as well as overselling DSL service by packing too many customers onto a single DSLAM.

“It might be 40Mbps service at the remote end, but it drops to around 6Mbps on a good day by the time it reaches my house,” Canby complains. “Once the sun goes down, the speed drops to 3Mbps, which is a classic case of overselling to me because too many people are trying to share one connection at the same time. It has been this way since 2008 according to my neighbors.”

Back then, phone service was provided by Qwest, the former Baby Bell providing service in 14 sparsely populated western U.S. states — Arizona, Colorado, Idaho, Iowa, Minnesota, Montana, Nebraska, New Mexico, North Dakota, Oregon, South Dakota, Utah, Washington, and Wyoming. Qwest was acquired by CenturyLink in 2011.

CenturyLink has promised to improve broadband speeds for former Qwest customers, but much of what counts as progress has been in more urban areas, while rural customers continue to languish. The company admits just 21.9 percent of rural households can get 40Mbps service. Only 47.6% can buy 12Mbps, 61.3% can get 5Mbps, and 83% can subscribe to 1.5Mbps. That leaves 17% of former Qwest customers with no broadband options at all. CenturyLink did not break out the percentage of customers that meet the FCC’s 25Mbps minimum speed definition of broadband.

“This is why CenturyLink loses customers to cable operators who have no problems trying to deliver internet access over their network, because it was built to support more bandwidth,” Canby shares. “They can usually deliver the same internet speed to customers no matter how far out they live while phone companies deal with a network built for making phone calls, not data.”

Company officials recognize they could do better and have promised investors another 2.5 million customers will be able to reach 40Mbps by the end of 2017. By the end of the year after that, CenturyLink hopes to reach 85% of customers with VDSL2, bonding, and vectoring technology to achieve 40Mbps service for most customers in their top 25 markets. But rural customers are likely to left waiting longer because of the costs to upgrade Qwest’s copper-based network, especially in smaller states like Idaho, the Dakotas and Wyoming.

“The only answer is cable or fiber broadband, and if you live in a small community it could be years before CenturyLink gets around to you,” Canby writes. “If it’s the same story all over town, I’d start advocating for a community-owned fiber network and not sit around and wait for CenturyLink to act, especially if there is no cable company in town.”

Community broadband advocates will have to redouble their efforts to overturn state laws that restrict or prohibit municipal broadband, because the Federal Communications Commission today signaled it will no longer be a part of that fight.

The federal regulator chaired by Thomas Wheeler sought to preempt state laws that restrict or ban publicly owned broadband networks, but municipal broadband opponents challenged the FCC in court and won in the U.S. Court of Appeals for the Sixth Circuit. The judges found the FCC had exceeded its authority.

“The FCC will not seek further review of the Sixth Circuit’s decision on municipal broadband after determining that doing so would not be the best use of Commission resources,” agency spokesperson Mark Wigfield told Motherboard.

In short, the FCC will let stand that court’s decision overturning the FCC’s preemption of state laws that restrict or prohibit municipal broadband, handing a major victory to Comcast, AT&T, Verizon, and Time Warner Cable (now Charter).

“Sometimes you’ve got to know when to fold ‘em,” Harold Feld, senior vice president of Public Knowledge, told Motherboard. “This case was always something of a long-shot, but now it’s too much of a long-shot to put money on.”

The decision not to appeal will require broadband advocates to battle in each impacted state to overturn the restrictive laws, which could be a long and arduous process. The alternative is voting in a majority of Democrats to the U.S. House and Senate. Democratic Sen. Cory Booker (NJ) introduced the “Community Broadband Act” — legislation to end anti-broadband state laws. Critics of the laws contend they are often written and lobbied for by incumbent telecom companies that don’t want competition. But the legislation has no chance of passage as long as Republicans maintain their House and Senate majority.

Signage for an AT&T store is seen in New York October 29, 2014. REUTERS/Shannon Stapleton/File Photo

WASHINGTON (Reuters) – A federal appeals court in California on Monday dismissed a U.S. government lawsuit that accused AT&T Inc  of deception for reducing internet speeds for customers with unlimited mobile data plans once their use exceeded certain levels.

The company, however, could still face a fine from the Federal Communications Commission regarding the slowdowns, also called “data throttling.”

The U.S. Court of Appeals for the Ninth Circuit said it ordered a lower court to dismiss the data-throttling lawsuit, which was filed in 2014 by the Federal Trade Commission.

The FTC sued AT&T on the grounds that the No. 2 U.S. wireless carrier failed to inform consumers it would slow the speeds of heavy data users on unlimited plans. In some cases, data speeds were slowed by nearly 90 percent, the lawsuit said.

The FTC said the practice was deceptive and, as a result, barred under the Federal Trade Commission Act. AT&T argued that there was an exception for common carriers, and the appeals court agreed:

The panel reversed the district court’s denial of AT&T Mobility LLC’s motion to dismiss, and remanded for an entry of an order of dismissal in an action brought by the Federal Trade Commission under section 5 of the FTC Act that took issue with the adequacy of AT&T’s disclosures regarding its data throttling plan, under which AT&T intentionally reduced the data speed of its customers with unlimited mobile data plans.

Section 5 of the FTC Act contains an exemption for “common carriers subject to the Acts to regulate commerce.” 15 U.S.C. § 45(a)(2). The panel held that AT&T was excluded from the coverage of section 5 of the FTC Act, and FTC’s claims could not be maintained. Specifically, the panel held that, based on the language and structure of the FTC Act, the common carrier exception was a status-based exemption and that AT&T, as a common carrier, was not covered by section 5.

Asked about the appeals court ruling, a spokesman for AT&T said: “We’re pleased with the decision.”

An FTC spokesman said the agency has not yet decided whether to appeal. “We are disappointed with the ruling and are considering our options for moving forward,” FTC spokesman Jay Mayfield wrote in an emailed comment.

The company, however, could face action from the FCC. In June 2015, the agency proposed a fine of $100 million for AT&T’s alleged failure to inform customers with unlimited data plans about the speed reductions. AT&T has contested that proposed fine.

(By Diane Bartz; Editing by Paul Simao and Matthew Lewis; Additional reporting by Stop the Cap!)