Verizon Wireless has sued the City of Rochester, N.Y. in a potentially precedent-setting case, for demanding excessive and discriminatory fees to use public rights-of-way to deploy a fiber backhaul network and hundreds of small cells to support the introduction of 5G wireless service in the community.

The lawsuit, Cellco Partnership (d/b/a Verizon Wireless) v. City of Rochester seeks a declaratory judgment acknowledging that local laws regarding the use of rights-of-way by telecommunications companies have been largely overridden by the Trump Administration’s Federal Communications Commission. Under FCC guidelines, the maximum compensation rate a city can generally collect is $270 annually for each small cell site, far less than what the City of Rochester hopes to collect from telecommunications companies planning to dig up streets and place hundreds of small cell antennas on utility and light poles across the city.

The two parties are far apart on what defines fair and just compensation. In early 2019, the City of Rochester introduced a new fee schedule that seeks $1,500 annually for the use of each publicly owned utility or light pole, and $1,000 per standalone “smart pole” erected by a wireless company to support a small cell. Verizon Wireless wants to pay no more than $270 annually for either type.

The City also wants compensation to cover “administrative costs for retaining and managing documents and records,” “costs for managing, coordinating and responding to public concerns and complaints,” and “the costs of the City’s self-insurance.” Verizon Wireless’ attorneys argue that the FCC’s “presumptive limit” of $270 annually is all-inclusive, and therefore the fees requested are inherently unreasonable.

The City ordinance is also designed to discourage providers from installing cables on existing utility poles, preferring underground installation.

“Aerial installation of fiber or other telecommunications facilities and accessory equipment strung between poles, buildings, or other facilities, is strongly discouraged due to area weather, safety concerns, limited capacity, and aesthetic disturbances,” the ordinance reads. But Verizon Wireless argues the extra fees demanded by the City for underground burial of fiber optic cable are illegal under federal law.

“The Code’s ‘underground’ fee structure is not a reasonable approximation of actual cost, is not objectively determined, and is discriminatory,” Verizon Wireless argues.

The City’s fees for fiber optic cable installation are significant. Verizon Wireless’ lawsuit notes fees start at $10,000 for up to 2,500 linear feet of installed fiber optic cable, plus an additional $1.50 for each additional foot from 2,500-12,500 feet and $0.75 for each additional foot above 12,500 feet. After the first year, fees continue at $5,000 annually for up to 2,500 feet, $1 for each additional foot from 2,500-12,500 feet, and $0.50 for each additional foot above 12,500 feet. Somewhat lower fees apply if Verizon places its fiber cables in an existing conduit with other cables, or if it uses directional boring to place conduit and wiring without disturbing lawns, roads, or sidewalks.

Curtin

Verizon Wireless’ attorneys argue the fees cannot possibly reflect the City’s true costs because the charges are the same regardless if Verizon installed three feet or 2,000 feet of fiber optic cable.

But City Corporation Counsel Tim Curtin told the Democrat & Chronicle the city’s new fee schedule is comparable to what other cities are charging, and the City is planning more restrictions to keep providers from repeatedly digging up streets and yards to place new cable and equipment.

“This is a serious problem with people digging up the same right of way every other day and not repairing it,” Curtin told the newspaper.

The City is also exploring passing a new “dig once” policy that would incentivize providers to coordinate fiber installation to place wiring and equipment in a single shared conduit in return for lower fees. But providers like Verizon Wireless consider it in their competitive advantage to wire cities like Rochester before their competitors do.

“To better serve its customers and the City and to begin to serve new customers and provide new services, Verizon Wireless seeks to extend, densify, and upgrade its wireless network infrastructure [in Rochester], including to install additional Small Wireless Facilities to support the provision of current and next-generation telecommunications services such as 5G and to deploy fiber to connect these facilities. To successfully do this, Verizon Wireless requires new approvals from [the City of Rochester] to access City property,” Verizon’s lawsuit states. Because of the City’s fees and policies, “Verizon Wireless has been, and will continue to be, damaged and irreparably harmed, […] [including] an effective prohibition on Verizon Wireless’s ability to provide telecommunications services in the affected area of the City.”

In short, Verizon Wireless is threatening not to deploy 5G service in the area if the City successfully defends its fees and requirements.

Curtin argues Verizon Wireless is the only provider unwilling to comply with the City’s requirements, while others are moving forward under the new ordinance. One provider likely covered by Curtin’s claim is residential fiber overbuilder Greenlight Networks, which has installed fiber to the home service across several city neighborhoods for the past several years. But in 2019, Greenlight began focusing on installations in suburbs west of Rochester, and several city neighborhoods proposed for service have languished for years with “easements required” status, which could reflect Greenlight’s reluctance or ability to pay the City’s new fees.

Verizon has been the most aggressive wireless provider in Western and Central New York with respect to the proposed 5G service expansion. In addition to being the incumbent local telephone company in several New York cities (excluding Rochester), it has also offered spotty FiOS fiber to the home service in several suburbs of Buffalo and Syracuse.

A small cell

In contrast with Rochester, the City of Syracuse decided to effectively “partner” with Verizon Wireless to deploy 5G small cells to be considered America’s “first fully 5G city.” To win Verizon over, the City mothballed its existing fee policy in 2019 that charged $950 per small cell tower, resetting the rate to match the FCC’s presumed maximum of $270 annually. In return, Verizon has tentatively agreed to place up to 600 smart cell poles around the city, paying $162,000 a year. Verizon also agreed to pay a $500 application fee for each pole project (covering up to a maximum of five poles per project). Nobody is certain whether 600 smart cells are enough to saturate the city with 5G coverage, where exactly Verizon will ultimately place the small cells, or exactly when.

Ken Schmidt, president of Steel in the Air, a consultant to public and private landowners and municipalities on matters related to wireless infrastructure valuation, offered to advise the City of Syracuse for free about its agreement with Verizon Wireless, but the City never returned his calls, despite his direct experience working with other cities that negotiated with Verizon Wireless over 5G smart cells, pole attachment fees, and antenna placement rules.

“Syracuse seems to have bent over backward for Verizon,” Schmidt argues on his blog. “Make no mistake, there are benefits to becoming a 5G city, but this agreement does no more for Syracuse than it does for other cities where Verizon promised the same thing. At least some of the other cities didn’t enter into such a one-sided agreement. For example, Sacramento, San Diego and San Jose negotiated better terms and conditions than Syracuse did, and will have a similarly robust small cell deployment.”

Many consultants recommend that cities consider whether Verizon’s threats not to deploy 5G service are real, especially considering the company’s PR claims that moving forward with 5G is essential to Verizon’s network expansion.

Schmidt

Schmidt acknowledges the current FCC has a vested interest in helping large wireless companies deploy 5G infrastructure with a minimum of interference or fees from local governments.

“While the City could have negotiated a higher amount for the pole access rights or permit fees, it would have had to demonstrate that its actual costs in reviewing small cell applications and maintaining the rights-of-way were higher than the nominal fees allowed by the FCC,” Schmidt said.

Verizon’s lawyers appeared to outmaneuver the City’s attorneys by winning a number of concessions for Verizon that Syracuse will have to live with for up to 45 years. Schmidt’s recommendations may be useful to other cities, including Rochester, wrestling with these issues.

Schmidt:

Syracuse granted rights to Verizon for upward of 45 years when it didn’t have to. The city signed a master license agreement for 20 years, which allows Verizon to install poles under individual pole licenses that run up to 25 years from the date the pole was installed. Thus, if a pole is installed in year 20, it will be there for another 25 years. In short, the city is entering a possible 45-year agreement even though there is no legal requirement to do so by the FCC or any other agency. While Verizon surely prefers a much longer agreement, other cities are entering much shorter, 10-year agreements with Verizon. Verizon retained the right to terminate “at any time for any reason or no reason by written notice to the city,” but the city does not have the same right. So, the city is now committed to this specific agreement legally, regardless of what happens with technology in the future.

The agreement entered into by the city concedes unnecessary rights to Verizon under contract law. The agreement is substantially the same as other agreements proposed by Verizon to other cities. It attempts to incorporate many of the standards from the FCC Order into the license agreement. From a legal perspective, these clauses did not need to be in the license agreement. If Verizon felt the city was not adhering to the FCC order, Verizon by default has the option of requesting relief from the FCC or filing in federal court for injunction or damages. However, by adding the language in the license agreement, Verizon can now file in state court on a civil claim if Verizon believes the city is in breach of the agreement and collect monetary damages. This is absolutely of no benefit to Syracuse.

Other cities have received additional compensation in the form of public safety or “internet of things” monitoring and services, and higher fees to help pay for additional staff to review small cells applications. Syracuse received nothing. In fairness, the other cities are bigger and more important to Verizon than Syracuse. Nonetheless, the only concession Verizon appears to have made to Syracuse is the requirement for Verizon to monitor a limited set of small cells for compliance with applicable radio frequency emission standards. Verizon did not commit to deploying a certain number of small cells by any date. It is not required to deploy in the poorer areas of the city. And it did not commit to smart city initiatives or research on how 5G can benefit the residents of Syracuse.

The agreement gives the city limited rights to terminate, even if health risks are identified and proven. The city, in what appears to be an effort to appease its citizens that small cells are safe, inserted language that requires Verizon to test up to 5% of the small cells annually to confirm that they meet the minimum applicable health, safety and radio frequency regulations. The city could also test on its own, but only to confirm compliance with applicable FCC standards. By agreeing to a long-term license with limited rights to terminate, the city could be legally committed to Verizon small cells in the public right of way even if there is ample evidence that they should be removed, unless the FCC revokes its order.

By agreeing to such a one-sided agreement, the city has condemned itself to agree to similar agreements with any company providing wireless services who want to deploy in the right-of-way. Under the FCC Order and previous case law regarding the Telecommunications Act of 1996, the city may not discriminate between similar providers of wireless services. By agreeing to the terms with Verizon, the city will have a difficult time agreeing to different terms with other providers.

Bell (Canada) will charge its wireless customers $40 to connect a new phone-enabled device to its network, effective July 4.

Canadian wireless companies have been competing recently to see how high they can raise connection fees on their customers. In 2018, most carriers charged less than $30 to connect new devices. But in April 2018 Bell raised its fee to $30 — just the latest in a series of rate hikes. Last October, it raised the price to $35 and will now charge $40 as of next month.

To “compete,” Canada’s other large cell phone companies followed suit — both Rogers and Telus raised their prices to $35 and analysts expect them to match Bell’s new $40 fee soon. Two years ago, Bell charged $15.

Canada has three large national carriers and is home to some of the most expensive cellular plans in the industrialized world. If the Department of Justice grants the pending merger between T-Mobile and Sprint, the United States will also soon have three large national carriers, with a strong likelihood that substantial price increases and reduced value mobile plans littered with fees and surcharges will soon follow.

Arris/Motorola’s SB6121 SURFboard DOCSIS 3.0 Cable Modem used to be considered “eXtreme,” but now most cable companies consider it obsolete.

The legacy of the hated modem rental fee is coming back to bite providers that charge $10 a month or more for a device that likely cost the company well under $100.

To opt out of the fee, a growing percentage of customers buy their own equipment, but now many of those modems are becoming functionally obsolete and customers are wary of efforts by providers to convince them to accept a newer, company-supplied modem.

With the arrival of DOCSIS 3.1 and faster speeds, the problem is only getting worse for companies like Comcast, Charter Spectrum, and Cox. With an installed base of hundreds of thousands of obsolete modems, customers frequently can no longer get the internet speed they pay for, and the equipment’s limitations can cause congestion on cable broadband networks, because older modems cannot take advantage of the exponential increase in available “channels” that help share the load on the neighborhood network.

“Some customers have cable modems that are incompatible (such as DOCSIS 2.0 and DOCSIS 3.0 4×4 modems) with the current class of service or internet speed that they’re receiving. As a result, these customers may not be experiencing the full range of available bandwidth that they’re paying for,” Comcast informs their customers. “If a device is no longer supported by Comcast or has reached its end-of-life (EOL), this essentially means that we will no longer install the device, either as a new or replacement device. In addition, we will no longer recommend that customers purchase the device, whether new or used.”

But many Comcast customers do not realize their equipment is effectively obsolete until they visit mydeviceinfo.xfinity.com and sign in to their account or enter a device make and model in the search bar on the homepage or hear directly from the company. Comcast will send online alerts to customers verified to still be using outdated equipment and occasionally send notifications through the mail. Customers can order new equipment online or swap out old equipment in a cable store. Comcast prefers its customers rent its Xfinity xFi Wireless Gateway ($13/mo) or xFi Advanced Gateway ($15/mo). As an incentive, Comcast is testing offering free unlimited data in some central U.S. markets to those choosing its more costly Advanced Gateway.

Charter Spectrum sold its merger with Time Warner Cable and Bright House Networks partly on its argument that modem fees would no longer be charged. Despite that, many former Time Warner Cable and Bright House customers still use their own modems, which has been a problem for a company that raised the standard internet speed available to residential customers from 15 Mbps to 100 Mbps (200 Mbps in some markets, mostly those also served by AT&T). Older modems often cannot achieve those speeds. Spectrum notifies affected customers in periodic campaigns, offering to replace their obsolete equipment, but many customers suspect hidden fees may be lurking in such offers and discard them.

“Some modems that were issued years ago have become outdated. If you have a modem that was issued by us and hasn’t been swapped in the last six years, it might need to be replaced,” Spectrum tells customers. “To get a replacement modem, contact us or visit a Spectrum store. Please recycle your old modem or bring it to a Spectrum store for proper disposal. If you do a modem swap with us, you’ll receive a mail return label in your package, which can be used to return your old modem.”

Cox is also in a similar predicament. It runs seasonal checks on its network to identify customers using older DOCSIS modems, often DOCSIS 3.0 4×4 modems, which can only support four download channels. When it finds customers eligible for an upgrade, it mails postcards offering a “free modem upgrade,” usually supplying a SB6183 or SB8200 modem that can arrive in 24-48 hours. But many Cox customers suspect trickery from Cox as well, or run into poorly trained customer service representatives that reject the postcards, claiming the customer is ineligible.

“DOCSIS 3.0 8×4 or higher (or a DOCSIS 3.1) devices are required for all new Cox High Speed Internet customers,” Cox tells their internet customers. “Current Cox customers should ensure they have a minimum of a DOCSIS 3.0 device in order to consistently receive optimal speeds. Additionally, Ultimate customers are required to have a minimum of a DOCSIS 3.0 device with a minimum of 16×4 or higher channel bonding to achieve package speeds.”

In fact, most modem upgrade offers from your provider are likely genuine, but customers need to pay attention to any fine print.

Customers can also purchase their own upgraded modem if they want to avoid Comcast’s Gateway fee. Cox does not charge customers for modems sent as part of a free upgrade offer, but watch for erroneous charges on your bill and report them at once if they do appear. Charter Spectrum has recently introduced a $9.99 modem activation fee, applicable to new customer-owned or company-supplied cable modems. We do not know if that fee would apply in cases of an obsolete modem upgrade. Be sure to ask, and if the answer is no, make a note of the representative’s name in case a dispute arises later on.

Cable One has the highest average revenue per customer of any publicly traded cable company in the United States, with the average customer paying Cable One $70.80 a month, mostly for internet access.

The company’s first quarter earnings growth of 5.5% reflect the company’s recent price increases and regime of low-allowance data caps, which have pushed 10 percent of its customers to pay an extra $40 a month to bring back unlimited access. Others are upgrading to costlier, faster tiers with more generous usage allowances.

“During the first quarter, we saw roughly 50% of our new customers choose our 200 Mbps or higher speed service and nearly 10% of our new customers opted to purchase our unlimited data plan,” said Julia Laulis, Cable One CEO.

Laulis

Cable One’s 200 Mbps plan (with a 600 GB data cap) costs $65 a month after promotions expire. A DOCSIS 3.0 modem lease fee of $10.50 applies. A $2.75 monthly internet service surcharge may apply. If a customer wants unlimited access to avoid overlimit fees, there is an additional charge of $40 a month (a 5 TB cap applies to the “unlimited plan”). Customers choosing a 200 Mbps broadband-only package with unlimited data will pay up to $118.25 a month.

Cable One’s broadband customers are concerned about staying within the data caps to avoid overlimit fees. While Comcast and Charter Spectrum customers consume over 300-400 GB of data per month (Comcast has a 1 TB cap, Spectrum only sells unlimited service), Cable One customers use an average of 290 GB, with usage growing at a 30-35% annual rate. Many Cable One customers have little choice either. Laulis noted that Cable One’s DSL competition is not very relevant when customers want to watch streaming video. Speeds are often so slow, customers do not have a good experience streaming HD video over DSL.

Cable One is also shedding its video customers in record numbers, with just 305,000 of its cable TV customers left. More than 29,000 departed year over year, and that number continues to rise as consumers rebel against the company’s high prices and unwillingness to negotiate.

MoffettNathanson warned that Cable One’s high pricing may eventually price itself out of broadband growth, as consumers elect to sign up with telephone companies instead. But many of its service areas are still served by low-speed DSL, and despite Cable One’s high cost, the company added 10,600 new internet customers in the last quarter.

In addition to raising prices, the company also plans to spend between $9-11 million to change its name from Cable One to Sparklight over the next two years.

Your cable or streaming TV bill will increase once again as Fox executives told cheering investors this morning it would hike prices for carrying Fox TV stations and its suite of cable networks, including Fox News Channel, Fox Business, Fox Sports 1 and 2, and the Big Ten Network.

“We plan to meaningfully accelerate growth of both direct retransmission and non-[owned and operated] revenue and we believe the broadcast economics we receive are quite underpriced relative to the quality of the content we are providing,” said Fox chief operating officer John Nallen, speaking at a Fox Investor Day event.

Fox’s contracts with most cable, satellite, and streaming providers are coming up for renewal over the next three years, and it should not surprise providers to see substantially higher renewal pricing than ever before to continue carrying Fox’s networks. Fox plans to leverage the increasing amount of live sports on its broadcast network and the relative popularity of Fox News Channel to demand higher compensation. Fox was already collecting 29% more in retransmission consent-related revenue during the third quarter, but that percentage is expected to grow dramatically as new contracts are signed.

Fox News is already the most costly cable news network, and as other broadcast TV networks demand ever greater compensation from cable and satellite providers, Fox executives feel they are not asking as much as they could for their channels. That is an important consideration for Fox, which slimmed down dramatically after a sale of most of its assets to Disney. The ‘new’ Fox is made up of the Fox television network, 28 owned and operated Fox affiliated TV stations, cable news and business, and three sports channels. Nallen sees no need to expand the network lineup further.

“We are no longer lending the potency of our marketing brands toward any other initiative, brand or channel development,” Nallen said. “The purity of this sustained value opportunity from our Fox brands is critical as we are not tethered to any properties that are just getting harder to defend. This frees us up to capture the full value of all our brands across broadcast and cable.”

Nallen knows some cable operators have grown increasingly disenchanted with selling television service, and acknowledged some cable companies may balk at Fox’s new asking price, especially as cord cutting continues to accelerate. He told investors he is technology agnostic about who he sells Fox networks to, so it would come as no surprise if a streaming TV service eventually breaks into the top four Fox channel distributors. At the same time, as prices continue to rise, some traditional cable operators could eventually stop selling television service altogether.