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HissyFitWatch: New Hampshire Town Declares War on Comcast: “On a Scale of 1-10, Comcast is a Zero”

Phillip Dampier May 12, 2015 Broadband Speed, Comcast/Xfinity, Consumer News, HissyFitWatch, Public Policy & Gov't Comments Off on HissyFitWatch: New Hampshire Town Declares War on Comcast: “On a Scale of 1-10, Comcast is a Zero”

comcast gunThe community of Hampton Falls, N.H., was first settled in the year 1638 but many of the 2,200 residents of the New England town are settling for Comcast no more.

Selectmen of Hampton Falls called on Comcast to send a representative to their meeting after scores of locals complained about the awfulness of the local cable company.

“Comcast’s service is absolutely miserable,” said Hampton Falls vice-chairman Larry Smith. “On a scale of 1-10, I’d say it’s a zero.”

Smith shared a personal experience about his wife’s attempt to shift her business email to her residential account. Comcast repeatedly sent her to the wrong department.

“This is designed to be the worst system possible,” Smith said. “It’s a virtual monopoly. Comcast doesn’t reward or honor loyalty. If you don’t have an hour or two to devote to it, you don’t even bother picking up the phone.”

Comcast made another local resident drive back and forth to Portsmouth three times to pick up a new router because the equipment proved defective each time.

“Everyone who knows me knows that I don’t get irate, but this ticked me off,” the customer said.

hampton fallsComcast representative Jay Somers took heat throughout the meeting for missed service calls, poor equipment, poor Internet service, and lousy customer service.

His responses did not seem to satisfy residents:

  • On missed service calls, Somers said Comcast did not provide enough technicians to handle service calls in the area. He added the company tries to have someone responding within 24 hours, but that obviously was not consistently happening in Hampton Falls;
  • On Internet outages, Somers blamed customers using their own purchased modems instead of relying on Comcast’s own Internet Gateway, which costs an extra $10 per month;
  • Television and other outages were the fault of home wiring or animals allowed to chew on Comcast’s cables.

Somers promised Comcast treated every customer the same, regardless of whether they were a budget minded customer or one taking every service they have.

While in no rush to deal with customer complaints, Comcast sent a letter signed by Nick Leuci, vice president of franchising, pressuring the town to hurry renewal of Comcast’s local franchise, despite having over a year remaining on the current agreement.

Based on the number of complaints from local residents, the board decided to take that matter up at a later date.

LTE-Unlicensed: How the Wireless Industry Plans to Conquer Your (and the Cable Industry’s) Home Wi-Fi Hotspot

special reportWith billions of dollars in new revenue and royalties to be made, Qualcomm and some members of the wireless industry are pushing regulators to quickly approve a new version of LTE wireless technology that will share many of the same frequencies used by home and business Wi-Fi networks, creating the potential for speed-killing interference.

Wireless operators believe LTE-Unlicensed (LTE-U) could be used to offload much of the growing wireless data traffic off traditional 4G LTE wireless data networks. With the cost of securing more wireless spectrum from regulators growing, LTE-U technology would allow operators like AT&T, Verizon, Sprint and T-Mobile to use the U-NII-1 (5150-5250MHz) and U-NII-3 (5725-5850MHz) unlicensed bands currently used for Wi-Fi to deliver high-speed wireless broadband traffic to their customers.

Qualcomm and Ericsson, behind the newest iteration of LTE, have a vested interest promoting it as the ideal choice for metrocell, indoor enterprise, and residential small cell applications. Every manufacturer incorporating LTE-U technology into everything from carrier-owned microcells to smartphones will owe royalty payments to both companies. With billions at stake, Qualcomm is doing everything possible to tamp down fears LTE-U signals will create harmful interference to Wi-Fi signals.

qualcomm lte-u

[flv]http://www.phillipdampier.com/video/CES2015 Qualcomm Demonstrates LTE-U 1-2015.mp4[/flv]

At the Consumer Electronics Show in Las Vegas held in January, a Qualcomm representative went as far as suggesting LTE-U will improve home Wi-Fi service. (5:42)

RCRWireless News:

[Qualcomm] set up a screened room with eight pairs of access points occupying the same channel and added Wi-Fi access-point terminals in one room and LTE-U terminals in another. The results show the average throughput of 3.3Mbps with Wi-Fi alone more than doubled to 6.7Mbps when the LTE-U access point was introduced.

In another test to show that LTE-U is a better neighbor to Wi-Fi than Wi-Fi itself, they took eight Wi-Fi nodes and replaced four of them with LTE-U nodes, the result of which showed a 1.9Mbps increase in average Wi-Fi throughput. In almost every test, the LTE-U enhanced network outperformed traditional Wi-Fi.

Burstein

Burstein

Industry observer Dave Burstein is concerned advocates of LTE-U are trying to rush approval of the technology without verifying Qualcomm’s non-interference claims.

“The telcos are considering 40 and 80MHz channels that could easily swallow half of more of the Wi-Fi spectrum,” Burstein writes in response to an EE Times article about the technology. “If Wi-Fi is important, that’s a mistake to allow. Advocates are trying to rush it through even though there is not a single independent test or field trial.”

Qualcomm dismisses the interference complaints pointing to its own research showing the two standards can co-exist adequately. But multi-billion dollar wireless companies with nationwide Wi-Fi networks at stake are far less confident. In fact, LTE-U has already divided the two largest wireless carriers in the United States. Verizon Wireless is an original proponent of LTE-U while AT&T has expressed “concern,” a polite way of saying it isn’t happy. What separates AT&T and Verizon Wireless? AT&T has invested in a nationwide network of more than 34,000 Wi-Fi hotspots. Verizon offers just over 5,000, most for FiOS customers or those in especially high traffic venues.

A Stanford University professor with no ties to Qualcomm or the wireless industry privately shared his belief allowing 5GHz Wi-Fi signals to commingle with LTE-U is going to cause problems.

lte-u-unlicensed-spectrum-v3The development of “Wild West” Wi-Fi has always tracked differently than the licensed cellular/wireless business. Over more than a decade, evolving Wi-Fi standards have come to expect interference from other nearby Wi-Fi signals. In a densely packed city, more than two dozen Wi-Fi signals can easily be found all competing for their own space across the old 2.4GHz and newer 5GHz unlicensed bands.

Wi-Fi proponents credit its robustness to its “politeness protocol.” Before a wireless router or home hotspot fires up its Wi-Fi signal, it performs several tests to check for other users and constantly adjusts performance by backing off when it discovers interference from other signals. That is why a user can receive strong Wi-Fi signals but still endure reduced performance, as the hotspot accommodates nearby hotspots and other traffic.

It works reasonably well, according to Rupert Baines, a consultant at Real Wireless.

“But [Wi-Fi signals] are delicate, and they rely on implicit assumptions that there aren’t other things there (or aren’t too many),” Baines told EE Times. “In effect, they behave as though the unlicensed band were not technology neutral but were Wi-Fi only.”

The intrusion of LTE-U changes everything.

[flv]http://www.phillipdampier.com/video/Wireless Week Tuesdays with Roger LTE-Us Gain is Wi-Fis Loss 3-24-15.flv[/flv]

On the March 24, 2015 episode of Tuesdays with Roger, Recon Analytics’ founder Roger Entner talks with Wireless Week about the questions raised as major carriers, including T-Mobile and Verizon Wireless, plan to launch LTE into unlicensed territory. Concerns abound, particularly for consumers and companies who rely on Wi-Fi and don’t want licensed use in unlicensed bands to interrupt that service. (7:31)

Change in and of itself is not necessarily a bad thing, especially if LTE-U is superior to Wi-Fi, and some proponents suggest it is. Jag Bolaria, an analyst at The Linley Group, argues LTE better manages data/call handoff better than Wi-Fi access points can. LTE is also a more efficient spectrum user than Wi-Fi.

Last week, South Korea’s LG U+ demonstrated LTE-U was capable of 600Mbps speed, eight times faster than traditional LTE. But to accomplish that level of speed, LG U+ had to occupy 60MHz of bandwidth in the 5.8GHz band and allocate an extra 20MHz from its traditional LTE service. The company plans to further expand its use of South Korea’s 5.8GHz unlicensed band by occupying 80MHz of it to further boost speeds to 750Mbps. But the company did not say how the tests affected others sharing the same frequencies.

If LTE-U is superior, then why not gradually move every user towards the technology and away from Wi-Fi?

Aptilo Networks AB CEO Torbjorn Ward answers LTE-U is a solution in search of a problem.

“I think LTE on unlicensed sounds like a good idea if it wasn’t for the fact that there are four billion devices on Wi-Fi out there,” he told Light Reading, noting that 802.11ac can already run at 100Mbps, so there’s little need for the LTE boost. “I think when it comes to unlicensed, you can do a longer range with LTE, but I don’t see the full benefit.”

That does not seem to matter to LTE-U’s developers or cell phone companies that lack robust Wi-Fi networks of their own.

as-is

In the original Qualcomm/Ericsson proposal, both companies promote the fact they could launch LTE-U in the unlicensed Wi-Fi bands “as-is.” That is a big problem for AT&T and other Wi-Fi users because LTE-U evidently employs few, if any protection protocols in its initial specifications for other traffic. Verizon Wireless is reportedly lobbying against the development of interference protection protocols and has publicly asserted its interest in deploying LTE-U regardless of other users.

“In [the] USA, there are no requirements for unlicensed deployment that require changes to LTE air interface,” Verizon stated in its proposal: “New Band for LTE deployment as Supplemental Downlink in unlicensed 5.8GHz in USA.”

LTE-Unlicensed has been characterized as "rude" for not avoiding interference to other users.

LTE-Unlicensed has been characterized as “rude” for not avoiding interference to other users.

Clint W. Brown, business development director of mobility wireless connectivity at Broadcom, and a vice-chairman of the Wi-Fi Alliance counters it is premature to approve LTE-U in the unlicensed Wi-Fi band without more testing and information about its interference protocols.

“We’ve heard about the tests they’ve done, but it’s not factual,” Brown told EE Times. We haven’t seen the data and we don’t know how the tests were set up. First, I’d like to see if [LTE-U] can detect low-level signals. Second, I want to make sure it features a ‘Listen before Talk’ decision process so that LTE-U will wait for an opening rather than barging into the conversation already taking place in the unlicensed spectrum. Third, there should be a back-off mechanism, when it sees a collision. “We aren’t aware of any publicly available documents explicitly stating those attributes.”

The Federal Communications Commission has also now taken an interest and issued a public notice asking stakeholders and consumers to share their thoughts on LTE-U and a companion technology known as Licensed Assisted Access (LAA) that would hand off data sessions between a wireless carrier’s traditional 4G LTE network and LTE-U.

The makes the discussion political as well as technical. The FCC traditionally permits industry groups to define standards, but Republican Commissioner Mike O’Rielly now worries the FCC might butt into that process.

“The decision to jump into this space rather casually causes me great concern,” O’Rielly said. “In particular, any step that could insert the commission into the standards work for LTE-U comes with great risk. I will be vigilant in ensuring that the commission’s involvement does not result in taking sides with various stakeholders, hindering technological innovation, or having any say about what technologies should or should not be deployed.”

monopolyFor the moment, O’Rielly’s concerns about the FCC are premature as long as a division exists over LTE-U among many of the industry players:

  • Companies FOR LTE-U: Verizon, China Mobile, Qualcomm, Ericsson, NTT DoCoMo, T-Mobile USA, Deutsche Telekom, TeliaSonera, and China Unicom.  Equipment manufacturers also in support: Nokia, NSN, Alcatel-Lucent, LG, Huawei, ZTE, Hitachi, Panasonic, and others;
  • Companies AGAINST LTE-U (as now defined): Orange, Telefónica, Vodafone, AT&T, Sprint, SouthernLINC, US Cellular, DISH and a handful of vendors.

Burstein also uncovered evidence the wireless industry may be stacking the deck against increased competition and consumers. He found 11 of the world’s largest wireless companies (including AT&T, T-Mobile, and Sprint) quietly colluding on a proposal that would block anyone other than currently licensed LTE users from being able to use LTE-U on a standalone basis. The opaquely-titled proposal, “Precluding standalone access of LTE on unlicensed carriers,” is at least frank about its reasoning: “Standalone deployment in unlicensed spectrum implies drastically different business models from nowadays and might impact the value chain.”

In other words, if consumers are able to get savings from LTE-U using a new generation of non-traditional providers like Republic Wireless or Cablevision’s Freewheel that do not depend primarily on cellular networks, it could cost those 11 traditional wireless companies billions in lost revenue. To stop that, the companies propose requiring a special LAA “guard signal” to stop standalone access of LTE-U. Since only licensed cell phone companies have access to those frequencies, it automatically locks out new upstarts that lack mobile spectrum of their own.

Sneaky insertions like that may be exactly why the Obama Administration’s FCC is being more activist about monitoring the wireless industry, potentially cutting off anti-competitive proposals before they can become adopted as part of a formal technical standard.

[flv]http://www.phillipdampier.com/video/Fairness to Wi-Fi and LTE unlicensed 5-8-2015.mp4[/flv]

RCRWireless News gets deep into the development of LTE-Unlicensed and how it will impact cellular infrastructure, Wi-Fi and small cells. (25:39)

Comcast: Bill First, Ask Questions Later (or Never); Attorney Pelted With Collection Letters/Calls for Non-Service

comcast collectionsA Pennsylvania attorney that didn’t pay his $215 Comcast bill was hounded by Comcast’s collections crew despite never getting cable service at his new address.

Wayne resident Edmond Tiryak would seem like a poor target for cable company harassment. He’s a lawyer after all. But even he withered after a month of unrelenting phone calls and letters demanding he pay his bill for non-service.

Tiryak had a peaceful 25-year relationship with Comcast until he moved last October. After three weeks of no-show appointments, waits on hold of up to 40 minutes and lots of excuses, Comcast never bothered to hook up service at his new address. But that didn’t stop the cable company from billing Tiryak $215 for his first month, in advance.

Calling Comcast to the debate the veracity of the bill turned out to be an exercise in futility. Comcast’s offshore call center insists they know best — Tiryak has cable service because the computer says he does. The fact Tiryak lives at the address and claims he doesn’t is beside the point. The only important matter is how Tiryak would like to pay – Visa, Mastercard, Discover? The fact he still doesn’t have service is, well, incidental.

A reasonable person would refuse to pay and insist on an investigation by a supervisor to verify Comcast is MIA at the Tiryak residence. But Comcast has a collections department that could wear down Vladimir Putin and they know how to use it.

Two months later, the attorney pleaded with Inquirer business columnist Jeff Gelles to help get Comcast off his back.

“By the time he contacted me in January, Tiryak had given up in frustration and was just fighting to get the $215 bill erased,” Gelles wrote. “Even four letters to Comcast’s president hadn’t done the trick.”

Some quick media attention is an excellent way to get Comcast’s attention, at least for a little while, and Tiryak was initially pleased to report the charges had been zeroed out.

Phillip "Comcast channels Genghis Khan" Dampier

Phillip “Comcast channels Genghis Khan” Dampier

But then Comcast’s collections department changed their mind after dreaming about that $215 in lost revenue, and started calling Tiryak again.

Gelles forwarded on the complaint about the resumed harassment collection calls to Comcast and received yet another promise all would be made right.

“It’s astonishing to me that they would take a really good customer, who’s been with them 25 years, and basically just treat me as if I’m nothing – as if I’m useless to them,” Tiryak told Gelles.

A long-standing pattern of Comcast customer complaints suggests Tiryak should not be surprised.

Gelles gently reminded readers in Comcast’s hometown that the free market works best when customers have an alternative when stuck in an abusive relationship with the cable company. But deregulated capitalism hands out gold stars for monopoly building consolidation. Tiryak, like so many others, landed on Comcast’s Park Place and now they have to pay.

The solution to the chronic dyspepsia resulting from repeated exposure to Comcast isn’t Verizon, which has capitulated on further expansion of its competing FiOS fiber to the home service to focus on counting Verizon Wireless coin. Instead of phantom competition that never arrives, the FCC’s recent decision to provide checks and balances for cocky, deregulated behemoth cable companies like Comcast might be the best answer for now.

Despite industry claims that an apocalypse would result from applying any “utility-style” regulation like that used to keep AT&T in check during its monopoly years, consumer advocates suggest Comcast’s passive-aggressive behavior could be managed with one phone call to a state regulator.

Geldes asked the former director of consumer services for the Pennsylvania Public Utility Commission about how the agency would handle Tiryak’s complaint, if it were empowered to do so:

Under PUC rules, he says, after a utility investigates a dispute, it has to ask whether the consumer is satisfied. “If the customer says no, the company is required to give the PUC’s number for making an informal complaint,” he says. That is usually enough to solve most issues, he says. The agency also monitors nagging problems like long hold times for calls and occasionally intervenes.

Telephone companies used to dread the prospect of dealing with a customer complaint escalated to the New York Public Service Commission. Repair crews were often dispatched within an hour and generous service credits and apologies were routine. But the impact lived on for years after that. Customer service agents looking up account information on a customer who previously complained to the PSC about anything would find their computer terminal lit up like a Christmas tree, alerting them they were dealing with a customer that doesn’t play.

Recalling that era makes one wonder if regulating the biggest bad boys on the block — cable companies running wild — might not be such a bad idea after all.

Nothing else has worked.

Wall Street Turning Against Comcast-Time Warner Merger: “We Believe It Will Be Blocked”

Greenfield

Greenfield

An important Wall Street analyst has publicly written what many have thought offline for the past six months — the chances of regulators approving a merger of Comcast and Time Warner Cable are growing less and less each day that passes.

Rich Greenfield from BTIG Research has grown increasingly pessimistic about the odds of Comcast winning approval of its effort to buy Time Warner Cable.

Despite the unified view from the executive suites of both cable companies that the merger is a done-deal just waiting for pro forma paperwork to get handled by the FCC and Department of Justice, Greenfield has seen enough evidence to declare “the tide has turned against the cable monopoly in the past 12 months,” and now places the odds of a merger approval at 30 percent or less.

“Since we realized the inevitability of Title II regulation of broadband in December 2014, we have grown increasingly concerned that Comcast and Time Warner Cable will not be allowed to merge,” Greenfield wrote.

The claim from both cable companies that since Comcast and Time Warner Cable do not directly compete with each other, there in no basis on which the government could block the transaction, may become a moot point.

There are three factors that Greenfield believes will likely deliver a death-blow to the deal:

  • Monopsony Power
  • Broadband Market Share & Control
  • Aftershocks from the Net Neutrality Debate

btigMonopsony power is wielded when one very large buyer of a product or service becomes so important to the seller, it can dictate its own terms and win deals that no other competitor can secure for itself.

Comcast is already the nation’s largest cable operator. Time Warner Cable is second largest. One would have to combine most of the rest of the nation’s cable companies to create a force equally important to cable programming networks.

As Stop the Cap! testified last summer before the Public Service Commission in New York, allowing a merger of Comcast and Time Warner Cable would secure the combined cable company volume discounts on cable programming that no other competitor could negotiate for itself. That would deter competition by preventing start-ups from entering the cable television marketplace because they would be at a severe disadvantage with higher wholesale programming expenses that would probably make their retail prices uncompetitive.

Even worse, large national cable programming distributors could dictate terms on what kinds of programming was available.

comcastbuy_400_241The FCC recognized the danger of monopsony market power and in the 1990s set a 30% maximum market share limit on the number of video customers one company could control nationally. That number was set slightly above the national market share held by the largest cable company at the time — first known as TCI, then AT&T Broadband, and today Comcast. Comcast sued the FCC claiming the cap was unconstitutional and won twice – first in 2001 when a federal court dismissed the rule as arbitrary and again in 2009 when it threw out the FCC’s revised effort.

Comcast itself recognized the 30% cap as an important bellwether for regulators watching the concentration of market power through mergers and acquisitions. When it agreed to buy Time Warner Cable, it volunteered to spin-off enough customers of the combined company to stay under the 30% (now voluntary) cap.

Greenfield argues the importance of concentration in the video programming marketplace has been overtaken by concerns about broadband.

“While Comcast tried to steer the government to evaluate the Time Warner deal on the old paradigm of video subscriber share, it is increasingly clear that DOJ and FCC approval/denial will come down to how they view the competitive landscape of broadband and whether greater broadband market share serves the public interest,” Greenfield wrote.

comcast whoppersIf the Comcast merger deal ultimately fails, the company may have only itself to blame.

Last year Comcast faced intense scrutiny over its interconnection agreements with companies that handle traffic for large content producers like Netflix. Comcast customers faced a deterioration in Netflix streaming quality after Comcast refused to upgrade certain connections to keep up with growing demand. Netflix was eventually forced to establish a direct paid connection agreement with the cable operator, despite the fact Netflix offers cable operators free equipment and connections for just that purpose.

That event poured gasoline on the smoldering debate over Net Neutrality and helped fuel support for a strong Open Internet policy that would give the FCC authority to check connection agreements and ban paid online fast lanes.

Seeing how Comcast affected broadband service for millions of subscribers across dozens of states could shift the debate away from any local impacts of the merger and refocus it on how many broadband customers across the country a single company should manage.

Comcast will control 50% or more of the national broadband market when applying the FCC’s newly defined definition of broadband: 25/3Mbps.

That rings antitrust and anticompetitive alarm bells for any regulator.

Greenfield notes that changing the definition of broadband will dramatically reshape market share. It will nearly eliminate DSL as a suitable competitor and leave Americans with a choice between cable broadband and Verizon FiOS, community owned fiber networks, Google, and a small part of AT&T’s U-verse footprint. If those competitors don’t exist in your community, you will have no choice at all.

cap comcastEven Comcast admits cable broadband enjoys a near-monopoly at 25/3Mbps speeds. controlling 89.7% of the market as of December 2013.

“If regulators take the ‘national’ approach to evaluating broadband competition, the FCC’s redefinition would appear to put the deal in even greater jeopardy,” Greenfield writes. “Beyond the market share of existing subscribers, the larger issue is availability.  Whether or not a current subscriber takes 25/3Mbps or better, the far more relevant question is if a consumer wanted that level of speed do they have a choice beyond their local cable operator?  As of year-end 2013, Comcast’s own filing illustrates that in 63% of their footprint post-Time Warner Cable, they were the only consumer choice for 25 Mbps broadband (we suspect even higher now).”

“With Comcast’s scale both before and especially after the Time Warner Cable transaction, they become ‘the only way’ for a majority of Americans to receive content/programming that requires a robust broadband connection,” Greenfield warned.

Even worse, to protect its video business, a super-sized Comcast will be tempted to introduce usage caps that will deliver a built-in advantage to its own services.

“Over time, the fear is that Comcast will favor its own IP-delivered video services versus third parties, similar to how it is able to offer Comcast IP-based video services as a ‘managed’ service that does not count against bandwidth caps, while third-party video services that look similar count against bandwidth caps,” he wrote. “The natural inclination will be for [Comcast] to protect their business (think usage based caps that only apply to outsiders, peering/interconnection fees, etc.)”

“With the overlay of the populist uprising driving government policy, it is hard to imagine how regulators could approve the Comcast Time Warner Cable transaction at this point,” Greenfield concludes. “Comcast continues to try to get the government to look to the past to get its deal approved.  But the framework is about not only what is current, but what the future will look like – especially in a rapidly changing broadband world.”

FCC’s Tom Wheeler Falls in Line Behind President Obama’s Strong Net Neutrality Agenda

Wheeler

Wheeler

The chairman of the Federal Communications Commission has foreshadowed his revised plan for Net Neutrality will include reclassification of broadband as a utility, allowing the agency to better withstand future legal challenges as it increases its oversight of the Internet.

Tom Wheeler’s latest comments came during this week’s consumer electronics show in Las Vegas. Wheeler stressed he supports reclassification of broadband, away from its current definition as an “information service” subject to Section 706 of the Telecom Act of 1996 (all two broadly written paragraphs of it) towards a traditional “telecommunications service.” Under the Communications Act of 1934, that would place broadband under Title II of the FCC’s mandate. Although at least 100 pages long, Title II has stood the test of time and has withstood corporate lawsuits and challenges for decades.

Section 706 relies almost entirely on competition to resolve disputes by allowing the marketplace to solve problems. The 1996 Telecom Act, signed into law by President Bill Clinton, sought to promote competition and end “barriers to infrastructure investment.” Broadly written with few specifics, large telecom companies have successfully argued in court that nothing in Section 706 gives the FCC the right to interfere with the marketing and development of their Internet services, including the hotly disputed issues of usage caps, speed throttling, and the fight against paid fast lanes and Internet traffic toll booths. In fact, the industry has argued increased involvement by the FCC runs contrary to the goals of Section 706 by deterring private investment.

An executive summary of a report published on the industry-funded Internet Innovation Alliance website wastes no time making that connection, stating it in the first paragraph:

Net neutrality has the potential to distort the parameters built into operator business cases in such a way as to increase the expected risk. And because it distorts the operator investment business decision, net neutrality has the potential to significantly discourage infrastructure investment. This is due to the fact that investments in infrastructure are highly sensitive to expected subscriber revenue. Anything that reduces the expectation of such revenue streams can either delay or curtail such investments.

netneutralityUnfortunately for consumers, even the chairman of the FCC concedes the broadband marketplace isn’t exactly teeming with the kind of competition Section 706 envisioned to keep the marketplace in check. In fact, Wheeler suggested most Americans live with a broadband duopoly, and often a monopoly when buying Internet access at speeds of 25Mbps or greater. Further industry consolidation is already underway, which further deters new competitors from entering the market.

Net Neutrality critics, the broadband industry, and their allies on Capitol Hill have argued that adopting Title II rules for broadband will saddle ISPs with at least one hundred pages of rules originally written to manage the landline telephone monopoly of the 1930s. Title II allows the FCC to force providers to charge “just and reasonable rates” which they believe opens the door to rate regulation. It also broadly requires providers to act “in the public interest” and unambiguously prohibits companies from making “any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services.”

Both Comcast and Verizon have challenged the FCC’s authority to regulate Internet services using Section 706, and twice the courts have ruled largely in favor of the cable and phone company. Judges have no problem permitting the FCC to enforce policies that encourage competition, which has allowed the FCC some room to insist that whatever providers choose to charge customers or what they do to manage Internet traffic must be fully disclosed. The court in the Verizon case also suggested the FCC has the authority to oversee the relationship between ISPs and content providers also within a framework of promoting competition.

DC Circuit Court

DC Circuit Court

But when the FCC sought to enforce specific policies governing Internet traffic using Section 706, they lost their case in court.

Although Net Neutrality critics contend the FCC has plenty of authority to enforce Net Neutrality under Section 706, in reality the FCC’s hands are tied as soon as they attempt to implement anti-blocking and anti-traffic discrimination rules.

The court found that the FCC cannot impose new rules under Section 706 that are covered by other provisions of the Communications Act.

So what does that mean, exactly?

Michael Powell, former FCC chairman, is now the chief lobbyist for the National Cable & Telecommunications Association. (Photo courtesy: NCTA)

Michael Powell, former FCC chairman, is now the chief lobbyist for the National Cable & Telecommunications Association. (Photo courtesy: NCTA)

In 2002, former FCC chairman Michael Powell (who serves today as the cable industry’s chief lobbyist) presided over the agency’s decision to classify broadband not as a telecommunications service but an “information service provider” subject to Title I oversight. Whether he realized it or not, that decision meant broadband providers would be exempt from common carrier obligations as long as they remained subject to Title I rules.

When the FCC sought to write rules requiring ISPs not block, slow or discriminate against certain Internet traffic, the court ruled they overstepped into “common carrier”-style regulations like those that originally prohibited phone companies from blocking phone calls or preventing another phone company from connecting calls to and from AT&T’s network.

If the FCC wanted to enforce rules that mimic “common carrier” regulations, the court ruled the FCC needed to demonstrate it had the regulatory authority or risk further embarrassing defeats in the courtroom. The FCC’s transparency rules requiring ISPs to disclose their rates and network management policies survived Verizon’s court challenge because the court found that policy promoted competition and did not trespass on regulations written under Title II.

The writing on the wall could not be clearer: If you want Net Neutrality to survive inevitable court challenges, you need to reclassify broadband as a telecommunications service under Title II of the Communications Act.

Major ISPs won’t hear of it however and have launched an expensive media blitz claiming that reclassification would subject them to 100 pages of regulations written for the rotary dial era. Broadband, they say, would be regulated like a 1934 landline. Some have suggested the costs of complying with the new regulations would lead to significant rate increases as well. Many Republicans in Congress want the FCC to wait until they can introduce and pass a Net Neutrality policy of their own, one that will likely heavily tilt in favor of providers. Such a bill would likely face a presidential veto.

Suggestions the FCC would voluntarily not impose outdated or irrelevant sections of Title II on the broadband industry didn’t soothe providers or their supporters. Republican FCC commissioners are also cold to the concept of reclassification.

O'Rielly

O’Rielly

“Title II includes a host of arcane provisions,” said FCC commissioner Michael O’Rielly in a meeting in May 2014. “The idea that the commission can magically impose or sprinkle just the right amount of Title II on broadband providers is giving the commission more credit than it ever deserves.”

Providers were cautiously optimistic in 2014 they could navigate around strong Net Neutrality enforcement with the help of their lobbyists and suggestions that an industry-regulator compromise was possible. Early indications that a watered-down version of Net Neutrality was on the way came after a trial balloon was floated by Wheeler last year. Under his original concept, paid fast lanes and other network management and traffic manipulation would be allowed if it did not create undue burdens on other Internet traffic.

Net activists loudly protested Wheeler’s vision of Net Neutrality was a sellout. Wheeler’s vision was permanently laid to rest after last November when President Barack Obama suddenly announced his support for strong and unambiguous Net Neutrality protections (and reclassifying broadband as a Title II telecommunications service), No FCC chairman would likely challenge policies directly advocated by the president that nominated him.

Obama spoke, Thomas Wheeler listened. Wheeler’s revised Net Neutrality plan is likely to arrive on the desks of his fellow commissioners no later than Feb. 5, scheduled for a vote on Feb. 26. It’s a safe bet the two Republicans will oppose the proposal and the three Democrats will support it. But chairman Wheeler also listens to Congress and made it clear he doesn’t have a problem deferring to them if they feel it necessary.

“Clearly, we’re going to come out with what I hope will be the gold standard,” Wheeler told the audience in Las Vegas. “If Congress wants to come in and then say, we want to make sure that this approach doesn’t get screwed up by some crazy chairman that comes in, [those are] legitimate issues.”

If that doesn’t work, the industry plans to take care of the Net Neutrality regulation problem itself. Hours after any Net Neutrality policy successfully gets approved, AT&T has promised to challenge it in court.

[flv]http://www.phillipdampier.com/video/Fox Business News Net Neutrality Wheeler 1-8-15.flv[/flv]

Free Press CEO Craig Aaron appeared on Fox Business News to discuss Tom Wheeler’s evolving position on Net Neutrality. (3:54)

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